E 

5 
8 


HABEAS   CORPUS, 


THE 


OF    WA.R, 


AND 


CONFISCATION. 


s.   s. 


LOUISVILLE  : 

PRINTED   BY   BRADLEY   &    GILBERT. 
1862. 


Bancroft  Library 

7  i  D i  JB 


HABEAS    CORPUS. 


The  vindication  of  the  President's  side  of  this  subject  has  at  length  fallen 
into  the  hands  of  most  unquestionable  legal  ability.  The  venerable  and 
eminent  Horace  Binney  has  published  a  carefully  prepared  pamphlet  of  fifty- 
eight  pages  in  vindication  of  the  President's  right  to  suspend,  or  of  his 
right  to  disregard  the  privilege  of  the  writ  of  habeas  corpus.  In  doing 
this,  he  is  not  merely  personally  discourteous  towards  Judge  Taney,  but  quite 
free  in  imputation  upon  the  character  of  Madison  and  the  Congress  of  '92.  He 
also  imputes  to  those  "men  of  great  acuteness "  who  deny  this  right  the 
biased  influence  of  their  "political  opinions"  in  favor  of  democracy,  and  "an 
acquired  prejudice  against  Presidential  power,  "  because  it  carries  power  in 
that  direction  which  is  against  the  gulf  stream  of  legislative  authority,  the 
great  channel  of  the  popular  will  of  the  moment."  After  such  free  invitation 
by  example,  he  will  neither  be  surprised  or  offended  if  his  readers  recollect 
or  notice  his  frank  showing  of  his  own  politics  as  some  explanation  of  his 
own  novel  and  most  peculiar  opinion.  The  pamphlet  leaves  no  need  for  rely- 
ing on  popular  imputation,  that  he  is  of  that  old  school  of  ultra  Federalists  who 
looked  upon  Alexander  Hamilton,  if  not  with  perfect  reverence,  at  least  with 
implicit  confidence  in  his  political  infallibility.  This,  too,  in  despite  his  known 
predilections  for  the  English  Constitution  as  the  very  best  that  ever  was  or  could 
be  made ;  —  and  despite  his  attempt  in  Convention  to  give  us  in  addition  to  a 
Senate  for  life,  a  President  for  life,  with  an  absolute  veto  on  all  acts  of  Con- 
gress, and  a  suspending  power  over  all  passed  acts ;  whilst  the  Governors  of 
the  different  States  were  to  be  appointed  by  the  General  Government,  with  a 
negative  or  veto  power  on  all  State  legislation.  He  speaks  of  the  "  greatly 
preponderant  strength  "  of  Congress  over  that  of  the  President  as  "  the  vice 
of  the  Constitution."  Whilst  yielding  it  no  word  of  commendation  for  sup- 
posed excellence,  nor  using  towards  it  any  expression  of  devotional  affection, 
he  obtrudes  upon  his  reader  a  warm  eulogium  on  the  English  Constitution. 
Does  he  not  force  upon  his  reader  the  surmise,  that  his  bias  in  favor  of  strong 
government  may  have  influenced  this  his  effort  so  materially  to  enlarge  the 
power  of  the  executive  ?  With  due  deference,  this  is  not  the  proper  mode  to- 
amend  the  Constitution.  As  said  by  Washington,  "let  there  be  no  change 
by  usurpation]*"  What  is  alteration  or  amendment,  not  obtained  in  the  regu- 
lar mode,  and  merely  through  the  insidious  instrumentality  of  false  construc- 
tion, but  usurpation? 

The  reader,  however,  can  not  fail  to  accord  this  new  champion  the  tribute 
of  admiration  for  intrepidity  in  thus  periling  so  large  a  reputation  in  his 
effort  to  give  us  a  stronger  government. 


"  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended,  unless 
when  in  cases  of  rebellion  or  invasion  the  public  safety  may  require  it." 

The  privilege  mentioned  in  this  clause  of  the  Constitution  is  that  of  an 
imprisoned  or  detained  person  to  be  brought  before  a  legal  tribunal,  to  be  dis- 
charged, bailed,  remanded,  or  tried  without  arbitrary  delay. 


.a 

< 

X 


2 

« 

By  which  of  the  three  departments  of  government  the  suspension  may  be 
made,  Mr.  Binney  says  "  is  the  question  of  the  day." 

It  is  a  question  now  for  the  first  time  raised,  after  the  government  has  been 
in  operation  for  more  than  seventy  years.  Heretofore  it  was  so  unanimously 
understood  that  the  power  belonged  to  Congress  as  to  prevent  even  the  moot- 
ing of  any  such  question.  This  common  opinion  has  been  affirmed  by  the 
express  declaration  of  the  Supreme  Court,  by  all  the  commentators,  bv  ail  our 
jurists  and  statesmen  who  by  action  or  otherwise  ever  intimated  an  opinion 
on  the  subject.  It  is  also  confirmed  by  the  fact,  that,  after  thorough  research, 
those  who  dispute  the  opinion  have  not  adduced  the  least  intimation  of  even 
a  contrary  doubt  heretofore  expressed  by  any  lawyer  or  statesman.  Never- 
theless, the  apologists  or  defenders  of  the  President  who  now  venture  to  ques- 
tion the  soundness  of  the  opinion  insist  that  it  is  still  open  for  revision,  and 
challenge  discussion.  It  is  the  present  purpose  to  present  a  brief,  condensed 
view  of  the  subject,  sufficient,  as  is  supposed,  to  answer  this  new  champion. 

There  is  a  short  process  by  which  to  eviscerate  the  very  gist  of  the  ques- 
tion, which  seems  not  yet  to  have  been  applied,  simple  and  obvious  as  is  that 
process.  Let  us  suppose  the  Constitution  wholly  silent  on  the  subject,  saying 
not  one  word  about  the  writ  or  its  suspension:  where  then  would  have  been 
the  power  to  suspend?  No  intelligent,  candid  man  will  pretend  that  it  would 
not  be  clearly,  indisputably  with  Congress,  or  that  by  any  possible  fair  con- 
struction the  power  could  be  assigned  to  the  President. 

This  conceded,  then  let  it  be  remembered  that  the  clause  is  a  restrictive, 
not  an  enabling  one.  Without  the  restriction,  Congress  would  have  had 
plenary  power,  untrammeled  discretion  over  the  writ.  It  could  have  created 
the  writ  or  not  at  its  pleasure;  suspended  or  wholly  repealed  it  out  of  exist- 
ence whenever  and  as  often  as  it  thought  proper. 

Here,  then,  this  full  power,  this  full  discretion  over  the  writ,  was  what  had 
to  be  restrained  to  acornplish  the  plain  purpose  of  the  clause,  that  is,  placing 
the  citizen's  privilege  of  using  the  protection  of  the  writ  upon  a  surer, 
more  permanent  basis  than  it  stood  in  England,  where  it  rests  upon  the  un- 
trammeled discretion  of  Parliament.  Who,  then,  was  intended  to  be  restrained 
by  this  clause?  Surely  not  the  President,  who,  under  such  silence  of  the 
Constitution,  would  have  had  no  possible  control  over  the  writ  in  any  circum- 
stances whatever.  There  could  be  no  necessity  to  restrain  his  power  when  he 
would  have  none  to  be  restrained.  Full  surely  it  must  have  been  intended  to 
restrain  Congress,  which  alone  and  exclusively  would  have  had  the  power. 

If  this  plain  view  needed  confirmation  it  could  be  found  in  a  cotemporaneous 
discussion  in  the  Virginia  Convention.  Patrick  Henry  contended  that  the 
restrictive  or  prohibitory  clauses  created  by  implication  powers  not  specially 
given,  contrary  to  the  assertion  of  the  advocates  of  the  Constitution,  that  the 
government  would  have  no  power  but  what  was  specially  granted.  He  referred 
to  the  habeas  corpus  clause,  and  said:  "It  results,  clearly,  that  if  it  had  not 
said  so,  they  could  have  suspended  it  in  all  cases  whatever."  Governor  Ran- 
dolph, to  whom  the  country  is  more  indebted  for  the  Constitution  than  to  any 
other  member  of  the  Federal  Convention  except  Charles  Pinckney,  answering 
Henry,  said :  "  Gentlemen,  suppose  from  the  negative  restrictions  that  Congress 
is  to-have  powers  by  implication.  I  will  meet  them  on  that  ground.  I  persuade 
myself  that  every  exception  here  mentioned  is  an  exception,  not  from  general 
powers,  but  from  the  particular  powers  therein  vested.  To  what  power  is  the. 
exception  made  to  the  importation  of  negroes?  Not  from  a  general  power, 
but  from  a  particular  power  expressly  enumerated.  This  is  an  exception 
from  the  power  given  of  regulating  commerce.  He  asks  where  is  the  power 
to  which  the  prohibition  of  suspending  the  habeas  corpus  is  an  exception. 
I  contend  that,  by  virtue  of  the  power  given  to  Congress  to  regulate  the  courts, 
they  could  suspend  the  writ.  This  is  therefore  an  exception  to  that  power." 
And  so  he  goes  on  as  to  each  of  the  restrictive  clauses,  showing  it  to  be  an 
exception  to  a  specially  granted  power. 

The  clause  must  therefore  be  considered  as  addressed  to  Congress,  and 


to  no  other  department,  saying  in  effect  you  shall  not  exercise  your  power 
of  suspending  the  privilege  of  the  writ,  unless  when  in  cases  of  rebellion  or 
invasion  the  public  safety  may  require  it. 

Knowing  that  the  writ  would  have  to  be  created  by  legislation,  and  that 
nothing  but  legislative  power  cotrld  repeal  or  suspend,  that  is,  partially  repeal 
such  legislation,  it  must  necessarily  be  the  legislature  that  was  intended  to 
be  controlled.  Knowing  that  the  President  would  have  no  legislative  power 
or  suspensory  power  over  legislation,  the  clause  could  not  have  been  intended 
to  restrain  him.  If  the  intention  had  been  to  confer  on  him  the  suspending 
power,  they  well  knew  the  indispensable  necessity  for  doing  so  by  a  plain, 
unambiguous  grant.  Such  grant  would  have  been  so  contrary  to  popular 
opinion  as  to  good  government  derived  from  English  precedent,  and  to  the 
whole  theory  of  the  Constitution,  and  it  would  have  been  such  an  anomaly 
in  a  government  of  separate  departments,  that  the  necessity  must  have  occur- 
red to  every  one  for  making  the  grant  in  the  plainest  language.  The  absence 
of  any  such  language  is  ample  disproof  of  any  such  intention. 

When  the  negation  of  a  power,  but  in  an  excepted  case,  carries  with  it  per- 
mission to  exercise  the  power  in  the  case  excepted,  surely  the  permission 
results  to  him  whose  power  is  so  restricted.  When  a  specific  abstraction  is 
made  from  a  Congressional  power,  it  must  retain  all  the  power  not  abstracted. 
Or,  if  one  of  its  powers  is  reduced  to  its  exercise  in  a  specified  case,  it  nec- 
essarily retains  its  power  to  the  extent  of  that  case.  Nothing  but  the  plainest 
language  could  properly  transfer  the  residuum  to  the  President  There  is 
absolutely  nothing  upon  which  to  imply  such  grant  to  him.  Even  if  there 
was  some  plausible  basis  for  such  implication,  still,  as  said  by  the  Supreme 
Court,  "it  is  certainly  against  the  general  theory  of  our  institutions  to  cre- 
ate^ great  discretionary  powers  by  implication."  Gelston  vs.  Hoyt  3,  Whean 
Indeed,  according  to  both  the  theory  and  letter  of  the  Constitution,  it  is 
more  than  doubtful  whether  the  President  has  any  implied  power  properly 
so  called,  the  whole  class  of  incidental,  inferential,  or  auxiliary  powers,  "nec- 
essary and  proper  for  carrying  into  execution"  "the  power  vested  in  him" 

em£  expressly  given  to  Congress  by  the  general  clause  of  sec.  8,  art.  1.  This 
was  fully  proved  by  Webster,  Calhoun,  and  others,  in  the  debate  on  Jackson's 
protest.  has  also  been  frequently  so  decided  by  the  Supreme  Court  in 
reference  to  the  vast  jurisdiction  conferred  by  the  Constitution  on  the  judicial 
department,  none  of  which  can  be  exercised  but  when  and  as  Congress  directs. 
A  parity  of  reason  makes  all  those  decisions  equally  applicable  to  the  execu- 
tive department 

This  plain  view  ought  to  settle  the  question  satisfactorily  to  the  plainest 
and  most  astute  intellects.  No  amount  of  sophistry  can  cloud  with  the  small- 
est doubt  the  process  by  which  the  result  is  attained. 

Mr.  Binney,  whilst  overlooking  entirely  this  decisive  view,  contends,  because 

is  not  said  distinctly,  explicitly,  who  shall  exercise  the  power,  it  must  go  to 

it  department  to  which  its  exercise  most  appropriately  belongs  by  the°gen- 
era  scheme  of  the  Constitution,  and  hence  infers  that  "the  power  appertains 
exclusively  to  the  President" 

•   fAfJfr  £"  claborate  h'story  of  the  writ,  and  of  the  adoption  of  this  clause 

the  Constitution,  he  takes  infinite  pains  to  prove  the  superior  trustworthi- 

t  a  President  over  Congress,  and  his  better  adaptation  to  the  exercise 

power— thence  inferring,  because  it  ought  to  have  been  given  to  him, 

must  be  construed^  be  so  given  in  the  absence,  as  he  insists,  of  t-ufficientlv 

manifested  intention  to  the  contrary.     The  whole  of  his  argument  to  prove 

superior  fitness  of  a  President,  if  it  need  answer,  is  fully  answered  by 

e  only  instance  occurring  in  our  history  where  there  was  a  difference  of 
ion  between  Congress  and  the  President  as  to  the  necessity  of  suspend- 
It  occurred  during  the  time  of  President  Jefferson,  when  Con- 
decided  contrary  to  his  opinion,  that  there  was  no  need  for  a  suspension, 
the  result  proving  that  Congress  was  right  and  he  was  wrong.     This  only 
impie  in  our  national  experience  induces  no  undue  confidence  in  presiden- 


tial  infallibility,  for  it  will  be  a  most  rare  accident  that  will  ever  give  the  na- 
tion a  President  of  more  eminent  ability  than  Jefferson.  But  the  argument 
needs  no  answer.  It  matters  little  what  he  or  we  may  think  as  to  which  of 
the  two  was  the  more  suitable  depository  of  the  power.  What  he  had  to  prove 
was  that  the  members  of  the  Convention  thonght  as  he  does,  and  then  that 
would  have  afforded  some  semblance  of  an  argument  in  favor  of  his  new  in- 
vented version.  But  this  he  does  not  even  attempt.  No  one  knows  better 
than  he  the  perfect  truth  of  the  constrained  admission  of  Messrs.  Lincoln 
and  Bates,  that  the  Constitution  was  framed  in  "special  dread  of  the  unity  of 
power,"  that  is,  of  executive  power.  This  being  so,  he  is  not  only  deprived  of 
all  gain  to  his  argument  from  that  imputed  superior  fitness  of  a  President, 
but  the  argument  turns  against  him  with  peculiar  force  from  the  great  impor- 
tance he  would  evidently  have  attached  to  the  fact  if  it  had  been  really  such 
as  to  suit  him.  That  he  knows  the  Convention  did  not  participate  in  his  predi- 
lections for  executive  power,  but  were  governed  by  an  opposite  feeling — by 
"a  special  dread"  of  such  power,  is  clearly  inferrable  from  his  pamphlet.  He 
speaks  of  the  "greatly  preponderant  strength"  of  Congress  over  that  of  the 
President  as  "  the  vice  of  the  Constitution ;"  and  cites  with  approval  the  opinion 
of  the  English  novelist,  Bulwer,  that  our  government  exhibits  "the  feeblest  exec- 
utive perhaps  ever  known  in  a  civilized  community."  He  even  permits  himself 
to  say:  "Jealously  of  that  office  during  the  earlier  part  of  the  Convention,  and 
in  certain  States  before  the  adoption  of  the  Constitution,  was  a  topic  with  those 
who  did  not  wish  any  Constitution  or  Union ;  but  for  sixty  years,  at  least,  it 
has  been  beyond  any  sensible  man' s  power  of  face  to  prof  ess  it  gravely." 

Such  an  affirmation,  from  such  a  man,  at  such  a  juncture,  ought  not  to  go 
without  an  emphatic  contradiction  and  refutation,  though  every  "sensible  man  " 
may  know,  or  fancy  he  knows,  that  it  has  not  the  slightest  foundation  in  fact. 
Whilst  a  perilous  warfare  is  waging  against  the  Constitution,  and  a  powerful 
conspiracy  going  on  for  accumulating  all  power  into  the  hands  of  the  Presi- 
dent, the  published  sayings  of  such  a  man,  having  direct  tendency  to  aid  that 
warfare  and  conspiracy,  ought  not  to  be  overlooked  because  of  their  harm- 
lessness  if  uttered  in  other  times,  or  only  to  men  of  intelligence. 

It  would  be  worse  than  tedious,  it  would  be  useless,  to  multiply  proof  in 
negation  of  his  assertion.  Let  a  few  example  specimens  of  the  superabun- 
dant proof  suffice.  In  1826,  when  an  annual  disbursement  of  five  or  six  hun- 
dred million  and  the  patronage  arising  from  a  military  and  naval  force  of  near 
seven  hundred  thousand  men  was  anticipated  by  no  ane,  a  committee  of  the 
Senate,  composed  of  such  men  as  Benton  and  Van  Buren,  said: 

"Patronage  will  penetrate  this  body,  subdue  its  capacity  of  resistance; 
chain  it  to  the  car  of  power,  and  enable  the  President  to  rule  as  easily  and 
much  more  securely  with  than  without  the  nominal  check  of  the  Senate.  We 
must  look  forward  to  the  time  when  the  nomination  by  the  President  can 
carry  any  man  through  the  Senate,  and  his  recommendation  can  carry  any 
measure  through  Congress;  when  the  principles  of  public  action  will  be  open 
and  avowed :  the  President  wants  my  vote  and  I  want  his  patronage.  What 
will  this  be  but  the  government  of  one  man;  and  what  is  the. government  of 
one  man  but  a  monarchy?" 

In  1 840,  Webster  in  bis  Richmond  speech  said,  that,  in  his  judgment,  "  it 
has  come  to  be  true,  in  the  actual  working  of  our  government,  that  the  exec-- 
utive  has  increased  its  influence  and  patronage  to  such  a  degree  that  it  may 
counteract  the  will  of  a  majority  of  the  people.  I  believe,that  the  power  and 
patronage  of  the  executive  not  only  has  increased,  is  increasing,  but  ought 
to  be  diminished.  *  *  *  Perhaps  it  remains  to  be  seen  whether  the  fra- 
mers  of  the  Constitution  had  not  better  have  given  less  power  to  the  executive, 
and  taken  all  the  inconveniences  arising  from  the  want  of  it,  rather  than  haz- 
ard the  granting  of  so  much  as  might  prove  dangerous,  not  only  to  the  other 
departments,  but  to  the  safety  and  freedom  of  the  country  at  large." 

During  the  same  year,  Clay,  in  his  Hanover  speech,  said:  "Modern 
democracy  has  reduced  the  federal  theory  of  a  strong  and  energetic  executive  to 


practical  operation.  It  has  turned  from  the  people  and  their  immediate  rep- 
resentatives, the  natural  allies  of  genuine  democracy,  to  the  executive;  and, 
instead  of  vigilance,  jealousy,  and  distrust,  has  given  to  that  department  all 
its  confidence,  and  made  to  it  a  virtual  surrender  of  all  the  powers  of  govern- 
ment The  recognized  maxim  6f  royal  infallibility  is  transplanted  from  the 
British  monarchy  into  modern  American  democracy,  and  the  President  can 
do  no  wrong.  The  new  school  adopts,  modifies,  changes,  renounces,  renews 
opinions  at  the  pleasure  of  the  executive.  *  *  *  The  sum  of  the  whole  is 
that  there  is  but  one  power,  one  control,  one  will  in  the  State.  All  is  con- 
centrated in  the  President.  He  executes  according  to  his  pleasure  or  caprice 
the  whole  powers  of  the  Commonwealth  which  have  been  absorbed  and  en- 
grossed by  him.  One  sole  will  commands  and  predominates  this  vast  commu- 
nity. If  this  be  not  practical  despotism  I  am  incapable  of  defining  it.  The 
existence  or  non-existence  of  arbitrary  government  does  not  depend  upon 
the  title  bestowed  upon  the  chief  of  a  State,  but  upon  the  quantum  of  power 
he  possesses  or  wields.  *  *  *  How  is  it  possible  for  public  liberty  to  be 
preserved,  and  the  constitutional  distribution  of  power  among  the  departments 
maintained,  unless  the  executive  career  be  checked  and  restrained." 

What  were  the  encroachments,  usurpations,  and  developments  of  presiden- 
tial power  so  loudly  complained  of  by  Webster  and  Clay  in  comparison  to 
those  we  are  now  daily  witnessing  ?  Yet  this  venerable  writer  has  the  "  face  " 
to  say,  "  it  is  beyond  any  sensible  man's  power  of  face  to  profess  gravely  any 
jealousy  of  the  presidential  office."  It  may  require  no  special  "power  of 
face"  for  an  old  fashioned  Federalist  to  avow  his  predilection  for  a  strong 

fovernment,  but  it  ought  to  require  no  little  to  impute  to  all  those  among  the 
ithers  of  the  republic,  who  professed  jealousy  of  the  presidential  office,  a 
want  of  friendship  for  the  Constitution  and  the  Union.  The  probability  is, 
that  fully  nine-tenths  of  the  nation  felt  that  jealousy.  It  ought  not  to  give 
offence  to  any  of  the  living  to  express  the  belief  as  to  those  dead  fathers, 
that  such  was  their  devoted  attachment  to  the  Constitution  and  the  Union, 
that  few  or  none  of  them  would  ever  have  attempted  to  alter  the  Constitution 
by  false  construction.  That  none  of  them  would  ever  have  proved  so  disloyal 
to  the  Union  as  to  aid  in  the  destruction  of  that  Constitution  which  consti- 
tues  its  chief  value.  They  would  not  have  encouraged  latitudinous  construc- 
tion at  a  moment  of  popular  frenzy,  when  public  sentiment  sets  so  strongly 
against  all  barriers  to  the  accumulation  of  presidential  power.  Their  fealty 
to  party  creed,  or  theory  of  best  government,  would  have  yielded  to  loyalty  to 
the  Constitution  and  the  Union.  They  certainly  never  would  have  given  aid 
and  comfort  to  the  destructives  whilst  the  Constitution  is  in  a  death  agony 
under  their  gigantic  clutch,  and  when  there  is  apparently  neither  moral  or 
physical  power  in  the  nation  to  loosen  their  grip. 

Mr.  Binney  contends  that  the  power  and  duty  of  making  arbitrary  arrests 
pertains  to  the  executive  during  the  suspension  of  the  writ,  and  that  therefore 
there  is  a  peculiar  fitness  in  his  having  also  the  power  to  suspend.  Though 
it  seems  not  to  have  occurred  to  him,  yet  it  will  to  all  his  intelligent  readers, 
that  his  assumed  fact  furnishes  the  most  conclusive  reason  against  his  con- 
struction. The  office  of  the  writ  is  to  protect  the  innocent  against  arbitrary 
arrests  by  any  one,  which  proves  in  practice,  in  accordance  with  rational  pre- 
sumption, almost  exclusively  —  nine  cases  in  ten  at  least,  a  protection  against 
executive  abuse  of  power.  How  preposterous  then,  how  contrary  to  all  the 
analogies  of  the  Constitution,  to  suppose  it  to  have  been  intended  to  leave  it 
to  executive  discretion  to  remove  this,  to  him,  obnoxious  restraint  upon  hie 
power.  In  England,  they  trust  to  the  king  an  absolute  veto,  the  power  of  war 
and  peace,  the  appointment  of  all  officers,  and  the  creation  of  an  unlimited 
number  of  hereditary  legislators,  but  do  not  trust  him  with  discretionary  power 
over  the  sacred  protection  of  this  writ — it  is  confided  to  Parliament  alone. 
The  framers  of  our  Constitution,  influenced  by  "  special  dread  "  of  executive 
power,  and  by  a  still  higher  appreciation  of  the  value  of  that  protection,  and 
uninfluenced  by  English  example,  would  not  trust  an  unrestricted  discretion 


6 

over  it  to  any  one,  not  even  the  legislative  department.  Influenced  bv  such 
high  appreciation  of  the  protection,  and  such  manifest  jealousy  of  all  officials 
in  regard  to  it  as  to  prohibit  its  suspension  except  in  time  of  invasion  and 
rebellion,  and  only,  then,  even  "when  the  public  safety  may  require  it,"  it 
could  not  have  been  intended  to  give  the  power  of  determining  when  the  pub- 
lic safety  did  so  require  to  one,  the  very  one.  the  only  one  of  the  whole  na- 
tion who  would  be  under  the  personal  bias  of  deciding  in  his  own  favor  and 
relieving  his  own  power  from  an  irksome  restraint.  That,  as  Daniel  Webster 
would  have  expressed  it,  "  would  be  placing  the  sacred  kid  under  the  paw  of 
the  lion."  Who  dare  impute  such  worse  than  folly  to  the  framers  of  the  Con- 
stitution! 

So  rife  was  the  jealousy  of  the  executive  power  in  the  national  mind,  that 
the  Congress  of  '92,  composed  in  large  part  of  members  of  the  Convention, 
would  not  trust  even  to  Washington  to  determine  when  a  rebellion  had  be- 
come too  strong  for  the  civil  authorities,  but  required  that  fact  to  be  first 
determined  by  a  United  States  Judge  before  the  President  was  allowed  to 
use  the  militia  in  its  suppression.  Such  also  is  believed  to  be  the  almost  uni- 
form tenor  of  State  legislation  on  the  subject,  as  it  has  also  been  of  English 
legislation. 

According  to  the  theory  of  our  written  constitutions,  it  belongs  to  the  leg- 
islature, generally,  to  determine  what  ought  to  be  done  and  command  what 
shall  be  done,  and  to  the  judicial  and  executive  departments  to  carry  the 
command  into  effect.  A  power  in  the  executive  to  determine  that  the  privilege 
of  the  writ  ought  to  be  suspended,  and  to  order  its  suspension,  is  subversive 
of  this  fundamental  principle.  It  would  be  the  introduction  of  a  discordant 
anomaly.  The  avoidance  of  such  an  anomaly  is  strong  reason  against  im- 
plying or  presuming  intention  to  grant  such  power. 

Another  reason  against  the  lodgment  of  such  power  in  the  President  is  that 
he  might  be  a  sympathizer  with  the  rebels,  if  not  an  instigator  of  the  rebellion. 
The  fact  may  not,  probably  has  not  actually  occurred,  but  it  is  notorious  that 
the  last  President  was  strongly  suspected,  and  if  Congress  just  before  the 
expiration  of  his  term  had  suspended  the  writ,  the  power  of  doing  what  was 
to  be  done  would  not  have  been  confided  to  him  or  his  subordinates,  but  to 
the  judiciary  and  its  subordinates.  The  Constitution  gives  the  power  to  confer 
the  appointment  of  "  inferior  officers"  upon  the  Courts,  and  to  those  inferior 
officers  would  have  been  assigned  the  defined  duty  of  doing  whatever  was 
intended  should  be  done  under  the  suspension.  The  President  has,  ex-officio, 
no  power  of  arrest,  nor  any  power  whatever  towards  suppressing  rebellion 
except  such  as  Congress  chooses  to  give,  and  the  whole  of  which  Congress 
can  at  any  moment  take  away.  The  writer's  challenge,  made  months  ago, 
for  the  production  of  a  single  instance  before  the  advent  of  President  Lin- 
coln of  even  an  attempt  by  any  President  or  State  Governor  to  exert  the 
power  of  arrest,  has  not  been  answered.  Most  probably  it  never  will  be 
answered,  as  the  attribution  to  the  President  of  any  ex-officio  power  of  arrest 
is  a  thing  altogether  new  and  of  very  recent  invention.  At  common  law,  in 
certain  cases  of  notorious  felony,  every  citizen  had  a  right  to  arrest  for  the 
purpose  of  carrying  the  accused  before  the  nearest  magistrate  for  commit- 
ment, and  if  our  constitutions  have  not  abrogated  this  right,  the  President 
has  it  as  a  citizen,  but  not,  ex  officio,  as  part  of  his  official  functions.  He  can, 
as  an  officer,  only  exercise  the  power  when  and  as  Congress  shall  direct. 

Mr.  Binney,  if  correctly  understood,  contends  that  the  Constitution  itself 
suspends  the  writ,  or,  which  is  the  same,  permits  it  to  be  treated  as  suspended 
upon  the  happening  of  the  concurring  facts"  of  a  rebellion  and  of  a  peril  to 
public  safety  requiring  its  suspension.  This  is  a  most  obviously  illogical  con- 
clusion from  the  mere  words  of  the  clause,  and  there  is  certainly  nothing 
elsewhere  in  the  Constitution  to  aid  that  conclusion.  The  clause  is  restrictive, 
with  a  sort  of  negative  pregant  exception  to  its  prohibition,  carrying  an  im- 
plied permission  to  suspend.  This  implied  permission  unavoidably  involve* 
the  idea  that  something  has  to  be  done  to  carry  out  or  act  upon  the  permis- 


sion.  That  is,  something  besides  the  Constitution  will  be  required  to  create 
a  suspension.  Otherwise,  if  the  intention  was  that  the  Constitution  itself 
should  make  the  suspension  upon  the  happening  of  the  contingency,  it  would 
have  plainly  said  so,  by  adding  to  the  clause  some  such  words  as  these  — "  and 
thereupon  the  privilege  of  the  writ  shall  stand  suspended."  The  permission 
given  is  unequivocably  to  suspend,  not  to  treat  it  as  suspended,  consequently 
it  could  not  have  been  supposed  that  the  Constitution  itself  made  the  suspen- 
sion in  presently  to  be  carried  out  infuturo.  So  far  as  the  permissive  power 
of  the  clause  goes,  in  saying  the  privilege  shall  not  be  suspended  except  on  a 
named  contingency,  it  says  nothing  more  or  less  than  would  follow  the  equiv- 
alent words,  "the privilege  may  be  suspended"  upon  the  named  contingency. 
Yet,  if  the  latter  had  been  the  words  used,  the  most  caviling  criticism  could 
not  deny  that  they  referred  to  something  de  hors  the  Constitution,  which  must 
be  done  to  create  the  suspension.  What  that  something  was  could  admit  of 
no  doubt  with  the  Convention.  There  being  neither  writ  nor  the  privilege  of 
the  writ  when  the  Constitution  was  made,  they  had  to  be  given  by  legislation, 
and  as  the  legislature  alone  can  repeal  or  suspend  a  legislative  act,  they  knew 
that  the  suspension  could  only  be  made  by  Congress.  Unless,  indeed,  they 
really  meant  to  confer  a  dispensing  power  on  the  President.  But  they  knew 
that  such  power  was  held  in  abhorrence  by  the  nation,  its  usurpation  having 
cost  the  head  of  one  English  king  and  the  throne  of  another,  and  therefore 
could  not  have  so  intended.  If  they  had  so  intended,  then  every  dictate  of 
common  sense  prudence  would  have  induced  the  making  the  grant  of  such 
power  in  the  plainest,  least  ambiguous  terms.  They  never  would  have  left 
such  an  obnoxious  power,  such  an  inevitable  cause  of  contention  to  rest  on 
any  doubtful  construction. 

A  power  to  disregard  the  privilege  of  the  writ  is  a  very  different  thing 
from  a  power  to  suspend  the  privilege.  The  former,  if  permitted,  might  be 
exercised  by  the  executive ;  but  the  latter  can  not,  because  it  involves  the  ex- 
ercise of  legislation.  The  distinction  is  so  obvious,  that,  if  the  former  had 
been  intended,  the  Constitution  would  have  plainly  said  that  in  the  given 
case  "  the  President  may  disregard  the  privilege  of  the  writ." 

It  is  agreed  on  all  hands  that  the  clause  is  a  prohibition  on  Congress,  except 
in  case  of  necessity,  against  permitting  any  disregard  of  the  privilege  of  the 
writ.  What  sense  can  there  be  in  such  prohibition  if  the  Constitution  itself 
gives  that  permission  to  the  President  ?  Yet  that  absurdity  is  involved  in 
the  attempt  to  deduce  a  grant  of  power  to  him  from  a  clause  not  even  nam- 
ing him,  and  which  is  merely  a  restraint  upon  or  an  exception  from  con- 
gressional power.  That  the  suspending  power  is  a  joint  concurrent  power  in 
Congress  and  the  President  is  an  absurdity,  involving  a  probable  if  not  nec- 
essary conflict  of  jurisdiction  of  which  the  Constitution  is  no  where  guilty. 
Both  departments  can  not  at  the  same  time  have  a  purely  discretionary 
power  over  any  subject,  without  the  result  in  practice  being  a  mutual  nullifi- 
cation to  greater  or  less  extent,  or  at  least  without  very  certain  collision. 

As  contended  by  Mr.  Binney,  the  mere  fact  of  rebellion  is  of  such  public 
notorious  character  as  to  permit  its  ascertainment  by  almost  any  functionary. 
But  the  rebellion  must  be  of  such  perilous  character  to  the  public  safety  as 
to  require  a  suspension  of  the  writ,  and  that  is  a  matter  about  which  there 
may  well  be  difference  of  opinion  among  even  the  wisest  and  most  disinter- 
ested. English  precedent,  the  national  feeling  of  the  day,  as  also  that  of  the 
members  of  the  Convention,  all  concurred  in  pointing  to  Congress  as  the  only 
safe  and  appropriate  depository  of  the  trust  for  determining  that  question, 
and  in  pointing  to  the  executive  as  the  least  trustworthy  or  appropriate.  Such 
was  the  popular  prejudice  against  any  control  over  that  sacred,  cherished 
privilege,  that  the  people  of  Virginia  declared  in  their  Constitution :  "  The 
privilege  of  the  writ  of  habeas  corpus  shall  not  in  any  case  be  suspended." 

The  result  is,  that  the  long  established  construction  is  the  true  one,  and 
that  Congress  alone  has  the  power  to  suspend  the  writ  When  Congress 


8 

exercises  that  power,  it  is  to  be  hoped  that  it  will  carefully  say  for  how  long 
the  suspension  shall  last,  what  powers  shall  be  exercised  during  the  suspen- 
sion, and  by  whom  they  shall  be  exercised,  conforming  as  near  as  may  be  to 
the  requirements  of  the  Constitution  for  protecting  the  citizens  against  arbi- 
trary or  vindictive  persecution.  Since  the  publication  of  the  writer's  review 
of  the  Attorney  General's  opinion,  he  has  met  with  nothing  in  print  sustain- 
ing the  ground  of  that  opinion  requiring  special  notice,  and  there  is,  therefore, 
no  need  for  his  prolonging  the  discussion.  It  is  due  to  Mr.  Binney  to  say 
that  he  has  done  nothing  to  damage  his  high  character,  professional  and  pri- 
vate, by  any  direct  approval  of  the  Attorney  General's  opinion,  or  by  seeking 
from  the  law  of  war  any  aid  to  his  own  construction. 


THE  LAW  OF  WAR. 


"  When  your  country  is  actually  in  war,  whether  it  be  a  war  of  invasion  or  a 
war  of  insurrection,  Congress  has  power  to  carry  on  the  war,  and  must  carry  it  on 
according  to  the  laws  of  war;  and  by  the  laws  of  war  an  invaded  country  has  all 
its  laws  and  municipal  regulations  swept  by  the  board,  and  martial  law  takes  the 
place  of  them.  *  *  *  When  a  country  is  invaded,  and  two  hostile  armies  are 
met  in  martial  array,  the  commanders  of  both  armies  have  power  to  emancipate  all 
the  slaves  in  the  invaded  territory." — Speech  of  J.  Q.  Adams  in  1842. 

Shortly  after  the  delivery  of  this  speech  the  present  writer  publicly  de- 
nounced its  "  extraordinary  doctrine  as  fit  only  to  be  met  and  buried  under 
an  universal  national  execration.  *  *  *  A  grosser  absurdity  surely  never 
entered  the  mind  of  an  intelligent  man,  educated  under  a  government  having 
a  written  Constitution." 

This  denunciation,  and  the  argument  made  in  its  vindication,  Mr.  Adams 
from  his  seat  in  Congress  promised  to  answer,  but  from  some  unexplained 
cause  he  never  made  the  attempt  It  was  predicted  at  the  time  that  "  these 
ravings  of  Mr.  Adams"  would  hereafter  be  "quoted  as  authority  on  Constitu- 
tional law,"  and  so  it  has  turned  out  Among  the  many  so  using  those  rav- 
ings my  attention  has  been  very  recently  called  to  a  pamphlet  written  by  a 
law  professor  in  a  Massachusetts  college,  who  has  the  bold  frankness  to  tell 
his  employers  and  the  public  that  he  so  uses  them  before  his  class.  He  also 
quotes  the  clause  of  the  Massachusetts  Constitution,  saying  that  except  "  by 
authority  of  the  Legislature"  "no  person  can  in  any  case  be  subjected  to  the 
law  martial "  but  those  engaged  in  the  military  service,  and  intimates  the 
opinion  that,  notwithstanding  this  clear  provision,  martial  law  would  prevail 
in  time  of  war,  and  the  commander  of  the  State  militia  would  have  the  right- 
ful power  to  disregard  the  State  Constitution.  In  other  words,  or  rather  the 
effect  of  this  is,  that  the  people  of  this  country  have  not  the  right  of  self-gov- 
ernment, not  having  the  privilege  of  making  a  Constitution  to  suit  them- 
selves. This  is  not  merely  folly ;  it  is  wickedness.  It  is  treason  against  civil 
liberty  and  the  Constitution ;  it  is  moral  treason  against  the  government  A 
college  is  somewhat  of  a  nuisance  which  permits  the  inculcation  upon  our 
young  men  of  such  debasing,  anti-republican  principles  so  destructive  of  ev- 
ery enlightened  sentiment  of  civil  liberty.  We  may  cease  to  wonder  at  the 
decay  of  that  devotional  fealty  to  the  Constitution  which  was  formerly  com- 
mon to  nearly  all  educated  Americans.  He  seems  to  think  that  whatever 
"  might  be  subversive  of  the  efficiency  of  military  operations"  cannot  be  se- 
cured against  military  power  by  the  people  in  their  constitutions ;  he  deem- 
ing the  efficiency  of  military  operations  the  summum  bonum  of  national  exis- 
tence. How  differently  do  these  degenerate  sons  of  Massachusetts  think  of 
the  necessity  and  safety  of  military  supremacy  from  their  revolutionary  fath- 
ers. Those  men  of  the  Revolution  held  military  sway  in  utter  abhorrence, 
whilst  their  degenerate  sons  deem  military  supremacy  so  indispensable  to  the 
State  that  the  people  themselves  are  not  competent  by  anything  they  may  say 


10 

or  do,  to  take  that  supremacy  from  the  military.  The  Federal  and  State  Con- 
stitutions are  all  made  in  the  spirit  of  utter  repugnance  to  military  rule,  and 
have  done  everything  that  written  words  can  do  to  keep  down  military  su- 
premacy at  all  times,  under  all  circumstances.  For  instance,  they  all  say  in 
effect  what  that  of  New  Hampshire  expresses  in  the  following  words:  "In 
all  cases  and  at  all  times  the  military  ought  to  be  under  strict  subordination 
to  and  governed  by  the  civil  power."  There  is  no  single  purpose  more  dis- 
tinctly legible  throughout  those  Constitutions  than  that  of  keeping  the  milita- 
ry in  subordination  and  never  allowing  them  an  occasion  or  pretext  for  assert- 
ing in  their  own  behalf  a  power  above  the  law.  Unlike  this  Professor,  the 
framers  of  those  Constitutions  deemed  that  subordination  an  infinitely  greater 
State  necessity  than  any  other  that  could  occur,  far  greater  than  the  mere 
"  efficiency  of  military  operations."  The  Constitution  of  Massachusetts  is  the 
only  one  that  seemingly  permits  the  introduction  of  martial  law  even  by  legis- 
lative authority. 

The  learned  Professor  is  graciously  pleased  to  admit  that  if  "  martial  law  is 
the  will  of  the  commander-in-chief,'  "it  cannot  exist  in  this  country  consis- 
tently with  the  Constitution,  for  it  would  be  utterly  subversive  of  the  Consti- 
tution for  the  time  being.  Neither  the  President  or  Congress  can  constitu- 
tionally proclaim  or  authorize  such  a  power."  But  he  seems  to  think  that  if 
he  had  the  defining  of  martial  law,  he  could  devise  something  efficient,  with- 
out trenching  on  the  Constitution.  Unfortunately,  however,  he  having  no 
such  privilege,  and  the  will  of  the  commander  being  verily  the  only  martial 
law  of  which  we  have  any  knowledge  or  of  which  the  law  books  give  any  in- 
formation, the  nation  must  be  deprived  of  his  proffered  services  as  a  lawgiver. 

Still  the  Professor  claims  for  military  commanders  power  not  only  to  do 
nearly  everything  that  may  appear  to  them  to  be  required  by  military  neces- 
sity, but  to  do  so  free  from  personal  responsibility  to  the  law,  with  a  total  ex- 
emption from  personal  arrest,  civil  or  criminal,  during  military  operations. 
To  prove  the  necessity  for  this  exemption  from  arrest,  he  supposes  a  sheriff 
with  his  posse  for  the  purpose  of  arrest  assaulting  the  commander's  army  in 
the  rear  whilst  the  enemy  are  fighting  him  in  front.  This  supposed  case 
could  never  occur,  for  there  is  not  a  sheriff  in  the  whole  Union  fool  enough  to 
attempt  an  arrest  under  such  circumstances,  and  if  such  a  one  there  is  he 
could  not  find  five  men  in  any  State  fools  enough  to  join  him  in  the  attempt. 
That  and  such  like  supposed  cases,  invented  for  furnishing  a  plausible  reason 
for  subverting  a  fundamental  principle  of  the  Constitution,  only  serve  to  bring 
in  doubt  the  sanity  of  the  supposer.  Why  not  with  equal  propriety  suppose 
hundreds,  nay  thousands,  of  unoffending  citizens,  men,  woman,  children,  wan- 
tonly murdered  under  the  rule  of  martial  law,  or  with  their  houses  burnt  and 
their  property  destroyed,  turned  out  in  the  mid  winter  of  a  severe  climate  to 
perish  with  cold  and  hunger.  If  the  public  press  speaks  truth,  the  possibility, 
if  not  the  actuality,  of  the  latter  supposition  is  being  proved  under  the  opera- 
tions of  martial  law  in  Western  Missouri.  In  full  corroboration  there  might 
be  cited  the  three  wanton  massacres  committed  without  punishment  or  re- 
buke in  the  streets  of  St.  Louis  by  German  soldiers  upon  unoffending  men, 
women,  and  children. 

The  correspondent  of  one  of  the  northern  papers  says  that  the  President 
never  reads  newspapers.  The  probability  that  he  has  not  time  to  do  so  gives  this 
assertion  some  plausibility.  Is  there  no  humane  citizen,  having  access  to  the 
President,  who  will  call  his  attention  to  these  manifold  atrocities  ?  Gentle- 
men of  first  respectability,  who  have  known  him  long  and  well,  still  insist 
that  his  heart  is  in  the  right  place  and  of  the  right  make,  that  it  is  most  kind- 
ly and  humane.  If  such  things  can  be  done  under  such  a  President,  we  have 
little  temptation  for  violating  the  Constitution  to  let  in  the  rule  of  martial  law. 

By  way  of  legal  authority  or  precedent  in  his  support,  this  Professor  cites 
the  obiter  dicta  of  Judge  Taney  in  the  Rhode  Island  case,  and  in  that  of 
Mitchell  vs.  Harmony,  13  Howard,  115.  The  first  of  those  cases  has  already 


11 

been  commented  on  in  a  previous  pamphlet.  The  other  case  was  a  suit 
brought  to  recover  the  value  of  goods  seized  or  lost  by  the  alleged  illegal  con- 
duct of  an  officer  during  the  invasion  of  Mexico  by  one  of  our  armies.  The 
Court  decided  that  there  was  no  actual  necessity  for  the  seizure,  and,  after  so 
deciding,  it  was  coram  non  judice  to  say  what  would  have  been  the  liability 
if  there  had  been  such  necessity.  The  opinion  extra  judicially  says:  "There 
are,  without  doubt,  occasions  in  which  private  property  may  lawfully  be  taken 
by  a  military  officer  for  public  use.  In  such  cases  government  is  bound  to 
make  full  compensation  to  the  owner,  but  the  officer  is  no  trespasser."  This 
is  in  seeming  contradiction  to  what  the  opinion  afterward  says:  "  It  can  never 
be  maintained  that  a  military  officer  can  justify  himself  for  doing  an  unlaw- 
ful act  b  :  producing  the  order  of  his  superior.  The  order  may  palliate,  but 
it  cannot  justify."  How  much  more  in  harmony  with  this  principle  would  it 
have  been  if  the  opinion  had  said,  that  when  an  officer  chooses  to  recognize 
supposed  necessity  as  superior  authority  and  obey  its  command,  such  com- 
mand may  palliate,  but  not  justify — necessity  not  being  recognized  as  a  lawful 
authority  in  a  Republic. 

No  precedent  or  authority  is  cited  to  sustain  this  dictum,  and  it  is  confiden- 
tly believed  that  none  could  have  been  cited.  The  whole  opinion  reads  much 
more  like  the  rescript  of  a  Roman  emperor  than  the  decision  of  a  court. 
There  is  no  argument  used  to  sustain  the  position,  and  it  is  contrary  to  all 
proper  usage  of  courts  to  dispose  of  so  important  a  principle  without  either 
argument  or  citation  of  authority.  In  both  these  cases  Judge  Taney  has  be- 
trayed, in  the  free  use  of  his  dicta,  rather  too  much  alacrity  of  leaning  in  fa- 
vor of  strong  government.  Since  so  high  an  example  has  been  set  for  tracing 
legal  opinions  to  imputed  political  bias,  it  may  not  be  invidious  to  suggest  that 
Judge  Taney  is  also  an  Old  School  Federalist,  and  to  intimate  that  these  lean- 
ing dicta  may  perhaps  be  ascribable  to  his  bias  in  favor  of  strong  govern- 
ment 

There  is  a  principle  or  maxim  of  the  common  law  that  private  right  of 
property  must  yield  to  public  necessity.  The  principle  has  been  adopted  or 
ratified  by  our  constitutions,  but  it  has  been  sub  modo  only.  They  all  recog- 
nize the  universal  principle  of  eternal  justice  involved  in  the  sanctity  of  pri- 
vate property,  and  expressly  prohibit  its  being  taken  for  public  use  without 
compensation.  The  adoption  of  the  principle  at  all  results  entirely  by  impli- 
cation from  this  prohibition.  Judge  Taney  admits  that ''the  government  .is 
bound  to  make  full  compensation."  But  how  is  it  bound?  The  Constitution 
gives  no  remedy  against  the  government.  Congress,  though  it  ought  to  have 
done  so,  has  given  no  such  remedy.  The  government,  therefore,  is  under  only 
an  honorary  obligation,  which  in  practice  most  generally  proves  near  of  kin 
to  no  obligation  at  all.  Indeed,  the  delays  and  difficulties  in  obtaining  an 
act  of  Congress  are  such  as  to  preclude  the  prosecution  of  a  small  claim  alto- 
gether. This  could  not  have  been  the  kind  of  compensation,  or  the  remedy 
tor  compensation,  contemplated  by  the  Constitution  in  giving  its  implied  sanc- 
tion to  the  arbitrary  taking  of  private  property  for  public  use,  that  forcing  in- 
dividuals to  contribute  an  undue  share  towards  the  wants  of  the  government. 
The  Constitution  must  have  meant  to  give  the  owner  a  much  more  substantial 
protection  and  remedy.  Till  Congress  shall  give  a  direct,  available  remedy 
against  the  government,  justice  forbids,  the  true  intent  of  the  Constitution 
forbids,  exempting  from  personal  responsibility  the  officer  who  makes  the  for- 
cible seizure.  His  responsibility  is  the  only  available  avenue  to  redress  for 
humble  citizens  residing  remote  from  the  capital.  The  superior  influence  and 
information  of  the  officer  afford  him  a  far  better  chance  of  obtaining  indem- 
nity through  the  slow  and  uncertain  process  of  an  act  of  Congress.  Besides, 
his  personal  responsibility  will  make  him  observe  a  proper  caution  in  the  ex- 
ercise of  his  arbitrary  discretion  in  making  seizures.  Such  caution  is  of 
great  value  to  the  government,  and  sound  policy,  for  its  protection,  requires 
the  question  to  be  settled  in  the  way  best  calculated  to  ensure  the  exercise  of 


12 

such  caution — the  perpetual  apprehension  of  being  imposed  upon  by  claims 
for  collusive  seizures  and  excessive  seizures  is  a  main  reason  why  Congress 
manifests  such  reluctance  and  dilatoriness  in  the  adjustment  of  such  claims. 
The  interests  of  both  the  government  and  the  owner  concur  in  requiring  the 
Constitution  to  be  so  construed  as  not  to  allow  a  taking  of  private  property 
for  public  use  without  compensation  actually  made,  which  renders  the  officer 
personally  liable  in  the  first  instance,  compelling  him,  instead  of  the  owner, 
to  look  to  the  government  for  indemnity.  Snch  it  is  hoped  and  believed  will 
be  the  ultimate  decision  of  the  Supreme  Court  upon  full  and  fair  reconsidera- 
tion. Adherence  to  this  dictum  requires  a  false  construction,  in  violation  of 
the  words  and  whole  spirit  of  the  Constitution.  If  Congress  wishes  constitu- 
tionally to  exercise  the  permitted  right  of  eminent  domain  or  sovereign  power 
over  private  property,  it  must  pay  in  advance,  or  give  the  owner  a  direct, 
available  remedy  against  the  government;  otherwise,  its  officers  must  remain 
personally  liable  till  compensation  is  actually  made. 

It  is  only  by  a  most  liberal  stretch  of  the  powers  of  construction  that  even 
proper  adequate  remedy  can  be  allowed  to  stand  in  lieu  of  actual  compensa- 
tion by  pre-payment.  The  bill  recently  passed  the  Senate  attempting  to  au- 
thorize the  seizure  for  national  use  of  railroads  and  telegraph  lines  gives  no 
such  proper  adequate  remedy,  and  is  therefore  unconstitutional  under  any  al- 
lowable construction.  Instead  of  assessment  of  compensation,  to  be  made  un- 
der judicial  supervision  with  direct  recourse  upon  the  treasury  for  the  amount, 
it  directs  that  three  commissioners  of  the  President's  appointing  shall  make 
the  assessment  for  the  information  of  Congress,  with  whom  it  will  still  be  dis- 
cretionary whether  to  pay  or  not.  It  is  absurd  to  suppose  that  the  court  will 
consider  this  as  adequate  remedy  in  lieu  of  just  compensation  pre-paid. 

Another  section  of  this  bill  authorizes  the  impressment  into  the  nation's 
military  service  of  all  the  employees  of  the  roads  and  lines  so  seized,  subject- 
ing them  also  to  the  pains  and  penalties  of  the  rules  and  articles  of  war. 
Congress  probably  has  the  power  to  compel  the  militia  to  stand  a  draft  for  a 
term  of  military  duty,  but  it  is  doubtful  whether  it  can  recruit  the  regular  ar- 
my in  that  way.  But  even  if  it  could,  there  would  still  be  reason  for  more 
than  doubts  whether  that  would  authorize  this  summary  impressment  of  a 
particular  class  of  citizens,  whilst  all  other  citizens  remain  exempt  from  such 
oppression.  There  may  be  no  specific  clause  expressly  prohibiting  the  exer- 
cising of  such  tyrannical  power;  but  what  is  equally  efficacious,  such  power 
is  repugnant  to  republican  government  and  the  whole  spirit  of  the  Constitu- 
tion, which  requires  the  burthens  of  government  to  be  distributed  with  some- 
thing like  fairness  and  equality  among  our  citizens.  This  is  in  strict  analogy 
with  those  adjudications  and  repeated  declarations  of  our  most  eminent  ju- 
rists, that,  even  if  the  Constitution  had  not  prohibited  the  taking  of  private 
property  without  compensation,  it  could  not  be  done,  because  such  oppression 
is  so  repugnant  to  the  eternal  principles  of  justice  that  it  could  not  be  allow- 
ed in  a  land  of  liberty  boasting  a  republican  government.  But  if  specific 
prohibition  must  be  found  against  this  mode  of  legislation  for  taking  whole 
classes  of  citizens  from  under  the  protecting  guaranties  of  the  Constitution, 
it  is  believed  that  the  prohibition  against  bills  of  attainder  may  well  be  ap- 
plied for  that  purpose.  It  is  no  light  penalty  to  make  a  soldier  of  a  citizen 
without  any  fault  in  him  and  against  his  consent,  whilst  his  neighbors  are  ex- 
empt from  such  arbitrary  usage.  If  this  view  be  correct,  if  this  indeed  be  • 
punishment,  however  light,  the  bill  is  to  every  intent  a  bill  of  attainder.  The 
government  can  with  no  more  propriety  use  punishment  of  the  innocent  as  a 
means  of  promoting  the  public  interest,  than  it  can  take  private  property  for 
public  use  without  compensation. 

The  discussion  of  this  bill  in  the  Senate  is  a  marked  feature  of  the  times, 
showing  by  what  an  attenuated  thread  the  liberties  of  the  nation  are  now 
suspended.  Senators  of  first  respectability  and  intelligence,  whilst  proclaim- 
ing their  unalterable  determination  not  to  go  beyond  the  Constitution  for  pow- 


13 

er  to  carry  on  the  war,  expressed  their  undoubted  belief  that  the  President 
already  has  all  the  power  attempted  to  be  conferred  by  this  bill. 

All  this,  however,  is  wandering  somewhat  from  the  main  purpose  of  this 
chapter,  which  was  to  make  a  comment  upon  the  text  extracted  from  the 
speech  of  J.  Q.  Adams. 

The  pretence  that  the  Constitution  was  made  for  peace  and  not  for  war  is  a 
new  invention  of  the  enemy.  It  was  formerly  thought  that  if  the  bill  of 
rights  was  made  more  particularly  for  either,  it  was  for  time  of  war  or  rebel- 
lion, because  those  would  be  the  times  when  men's  passions  would  be  aroused 
and  majorities  would  persecute  minorities.  The  old  Federalists,  who  disbe- 
lieved in  popular  self-government,  who  derided  our  government  for  its  alleged 
feebleness,  who  said  it  might  do  for  the  halcyon  days  of  peace  but  would  not 
answer  for  the  stormy  times  of  war,  did  not  pretend  that  it  was  intended  to 
operate  only  during  peace,  but  complained  that  being  made  for  war  as  well 
as  peace  it  was  too  feeble  for  the  former.  Their  complaint  was  that  an  un- 
due trust  in  the  people,  and  an  undue  jealous  distrust  of  government,  had 
emasculated  it  in  all  its  departments,  especially  in  its  executive  department; 
that  war  could  not  be  properly  carried  on  or  rebellion  suppressed  with  such 
inefficient  powers.  Their  complaint  was  that  there  could  be  no  enlargement 
of  those  powers  during  war  or  other  emergency  of  great  State  necessity;  that 
an  over  jealous  solicitude  for  the  preservation  of  liberty  had  deprived  the 
government  of  necessary  efficiency.  They  never  consoled  themselves  with  the 
belief,  nor  dared  make  the  assertion,  that  there  was  an  inherent  principle  or 
one  lurking  in  the  Constitution,  which,  whenever  an  emergency  arose,  would, 
by  the  law  of  necessity,  "  sweep  the  Constitution  by  the  board"  and  substi- 
tute the  law  of  war  in  its  place.  Such  an  assertion  would  have  sounded  bad- 
ly in  the  ears  of  the  men  of  the  Revolution,  who  in  their  Declaration  of  In- 
dependence had  made  it  one  of  the  principal  grounds  of  complaint  against 
the  King,  that  "he  has  affected  to  render  the  military  independent  of  and  su- 
perior to  the  civil  power."  Against  that  military  superiority  they  had  success- 
fully fought  out  the  Revolution,  and  in  making  their  Constitutions  they  were 
specially  careful  to  give  it  no  countenance  or  foot-hold. 

There  is  not,  there  never  can  be,  in  this  country,  a  law  of  war  different  from 
the  constitutional  law  of  the  land.  There  is,  there  never  can  be  here,  any  other 
law  of  war  other  than  that  which  Congress  has  created  or  may  create  within  the 
limits  of  its  constitutional  power.  The  usages  of  civilized  warfare,  derived 
from  the  law  of  nations,  come  to  us  entirely  by  Congressional  adoption,  express 
or  implied,  and  are  necessarily  limited  within  the  range  of  Congressional  pow- 
er. They  are  adopted  in  mitigation,  not  as  an  enlargement  of  military  power. 

Whilst  conducting  war  in  a  foreign  country,  our  whole  government  is  under 
no  check  or  responsibility  but  that  of  the  enlightened  censure  of  Christen- 
dom, though  the  Executive  is  under  the  control  of  Congress.  It  is  otherwise 
when  the  war  is  conducted  on  our  own  soil,  whether  in  defense  against  inva- 
sion, or  defensively  or  aggressively  against  rebellion.  Here  the  Constitution 
has  full  and  direct  sway,  acts  as  it  proclaims  itself  to  be  the  supreme  law  of 
the  land,  and  is  to  every  intent  the  law  of  the  war.  It  permits  the  law  of  na- 
tions, or  its  rules  of  civilized  warfare,  to  be  the  law  of  such  a  war  so  far  as  it 
applies  to  foreign  enemies  or  to  avowed  rebels,  but  never  to  our  own  non-com- 
batant citizens;  for  that  would,  pro  tanto,l>e  an  abdication  of  our  national 
supremacy  within  our  own  domain — the  intervention  of  foreign  law  for  the 
government  of  our  own  people.  It  would,  pro  tanto,  be  an  abrogation  of  the 
solemn  national  declaration,  that  the  Constitution  "  shall  be  the  supreme  law 
of  the  land." 

In  express  negation  of  any  other  hypothesis,  we  find  the  Constitution,  in 
full  view  of  all  the  exigencies  of  military  power  in  time  of  war,  carefully  say- 
ing: "No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  infamous 
crime,  unless  on  a  presentment  or  indictment  of  a  grand  jury,  except  in  cases 
arising  in  the  land  or  naval  forces,  or  in  the  militia  when  in  actual  service 


14 

tn  time  of  war  or  public  danger  •  *  *  *  nor  be  deprived  of  life,  liberty, 
or  property  without  due  process  of  law;  nor  shall  private  property  be  taken 
for  public  use  without  just  compensation." 

If  it  had  been  desired  or  contemplated  that  the  "life,  liberty,  or  property" 
of  a  citizen  not  engaged  in  "  the  land  or  naval  forces,"  or  in  actual  rebellion, 
should  be  brought  under  arbitrary  military  power  "in  time  of  war  or  public 
danger,"  the  Constitution  would  have  said  so,  and  placed  us  all  on  the  same 
footing  with  the  militiaman  "when  in  actual  service  in  time  of  war  or  public 
danger."  Such  militiamen,  together  with  that  of  "cases  arising  in  the  land 
or  naval  forces  "  and  armed  rebels,  are  the  only  exception  to  the  comprehen- 
sive protection  with  which  we  are  all  panoplied,  against  the  deprivation  of 
"  life,  liberty,  or  property  without  due  process  of  law,  '  at  all  times  and  under 
all  circumstances. 

The  assumption  by  our  military  commanders  of  power,  under  the  pretended 
law  of  war,  as  something  different  from  the  constitutional  law  of  the  land,  to 
deprive  a  non-combatant  citizen  of  "  life,  liberty,  or  property  without  due  pro- 
cess of  law,"  is  pure  usurpation.  The  only  law  of  war  for  their  guidance  and 
government  is  that  from  which  they  derive  their  commissions,  together  with 
their  whole  power — that  is,  the  Constitution  and  the  constitutional  acts  of 
Congress. 

Influenced  by  the  pernicious  example  of  General  Jackson,  and  the  still 
more  pernicious  precepts  of  Mr.  Adams,  some  of  our  modern  commanders 
have  fallen  into  the  great  mistake  of  supposing  that  upon  the  breaking  out  of 
the  war  of  this  accursed,  most  detestable  rebellion,  that  the  law  of  war  as  ap- 
plicable to  an  invasion  by  us  of  a  foreign  country  is  transplanted  and  appli- 
cable here  within  our  own  territory.  Under  this  idea  one  of  them  has  collated 
from  some  military  treatise  a  long  string  of  rules  deduced  from  that  law,  and 
attempts  by  his  mere  military  order  to  apply  them  to  all  the  citizens  of  Mis- 
souri; and  among  the  rest  he  proclaims  them  to  be  under  the  comprehensive 
rule  of  martial  law,  be  that  what  it  may.  What  it  is  under  bis  own  latitudi- 
nous  interpretation  he  has  given  repeated  illustrations.  He  arrests,  incarce- 
rates, or  banishes  from  the  State  whoever  he  pleases.  He  suppresses  news- 
papers at  pleasure,  and  has  placed  all  published  in  the  State  under  military 
surveilance,  directing  a  copy  of  each  emission  to  be  sent  to  head-quarters  un- 
der the  penalty  of  suppression.  He  makes  out  a  proscription  litft  of  three 
hundred  of  the  men  and  women  of  St.  Louis  who  he  suspects  of  disloyalty, 
appoints  three  or  five  persons,  as  a  board  to  select  sixty  from  that  list  upon 
whom  an  assessment  of  ten  thousand  dollars  is  to  be  levied  in  proportion  to 
their  respective  degrees  of  suspiciousness  and  ability  to  bear  the  burthen.  If 
any  of  the  sixty  claim  to  be  loyal  and  fail  to  prove  their  loyalty  to  the  satis- 
faction of  the  board,  he  or  she  is  to  be  assessed  ten  per  cent  additional.  If 
any  fail  for  a  week  to  pay  the  assessment,  they  incur  an  additional  penalty  of 
twenty-five  per  cent.  If  any  resist  the  levy,  they  are  to  be  dealt  with  by  a 
military  commission.  The  money  thus  raised  to  be  applied  to  the  relief  of 
such  Union  people  as  had  been  driven  from  their  homes  by  the  rebels.  No 
case  of  actual  resistance  occurring,  we  are  left  to  conjecture  how  an  offender 
would  be  dealt  with  by  his  military  commission.  But  one  of  the  proscribed 
sought  protection  from  the  law  by  suing  out  a  writ  of  replevin  for  his  goods. 
He  was  immediately  seized  and  banished  from  the  State,  with  a  very  signifi- 
cant intimation  that  if  he  dared  return  he  would  be  shot  The  president 
and  professors  of  a  college,  the  directors  of  a  commercial  library  and  of  a 
chamber  of  commerce,  are  to  be  removed  and  others  appointed. 

This  amiable  General,  at  the  inauguration  of  his  own  dictatorship  over  the 
people  of  Missouri,  was  a  stranger  in  St  Louis,  who  could  have  known  but 
little  of  its  inhabitants,  he  having  been  but  recently  picked  up  somewhere  in 
California  and  put  in  charge  of  that  military  department ;  and  consequently, 
in  making  out  his  proscription  list,  must  have  been  wholly  indebted  to  that 
exemplary  class  so  loved  and  admired  everywhere,  the  class  of  spies  and  in- 


15 

formers.  Those  of  them  to  be  found  in  St.  Louis  were  peculiarly  trust-wor- 
thy, from  the  notorious  fact,  that  none  of  our  other  cities  have  ever  been  near 
BO  much  afflicted  with  those  virulent  party  strifes  which  engender  such  long 
enduring,  bitter  personal  animosities. 

Whence  the  power  for  these  acts?  How  degrading  the  surmise,  that  national 
necessity  compels  resort  to  such  petty,  despicable  tyranny!  Is  this,  too,  part 
of  the  law  of  war,  of  a  great,  imperative,  overruling  State  necessity  which  throws 
aside  the  Constitution  and  lets  in  the  arbitrary  will  of  a  military  commander 
as  the  supreme  law  of  the  land.  His  intelligent  countrymen  will  laugh  at  his 
ridiculous  folly,  but  they  cannot  fail  to  pay  the  extorted  tribute  of  admiration 
for  his  super-superlative  impudence.  Can  it  be  that  he  is  so  ignorant  as  not 
to  know  that  hia  sales  of  property  will  be  treated  by  the  Courts  with  nothing 
but  contempt,  except  so  far  as  to  fix  personal  responsibility  upon  himself  and 
his  subordinates?  If  not,  then  how  does  he  escape  the  imputation  of  an  at- 
tempted swindle  upon  the  confiding  ignorant  who  may  make  purchases  at  his 
sales.  He  may  disregard  such  imputation,  and  trust  to  the  present  Congress 
for  indemnity  against  his  personal  liability.  But  some  one  should  tell  him 
that  the  personal  responsibility  will  come  hereafter,  when  the  present  ruling 
party  may  not  have  the  majority  in  Congress;  that  party  majorities  are  preca- 
rious things,  and  that  any  new  party  coming  in  upon  the  overthrow  of  that 
now  dominant  would  let  him  rot  in  jail  rather  than  appropriate  a  dollar  to- 
wards relieving  him  from  the  effects  of  his  atrocious  impudence  and  folly. 

The  beneficent  influence  of  military  rule,  and  the  necessity  for  its  interpo- 
sition as  a  power  above  law  and  Constitution,  may  be  further  illustrated  by 
the  opposite  fates  of  Missouri  and  Kentucky  under  the  national  troubles. 
Both  were  impelled  by  every  motive  of  interest,  patriotism,  and  love  for  both 
sections  to  keep  out  of  the  war  as  long  as  possible,  in  order  that  they  mighfc 
perform  the  office  of  mediators  in  bringing  about  peace  and  a  restoration  of 
the  Union.  Missouri,  with  a  larger  population,  had  only  half  as  many  slaves 
as  Kentucky,  and  being  clasped  on  three  of  her  sides  by  free  States  she  had 
a  decidedly  stronger  interest  in  preserving  the  Union  than  Kentucky.  The 
votes  of  their  people  proved  that  they  thought  so.  Only  two-thirds  of  the  vo- 
ters of  Kentucky  voted  a  decided  predilection  in  favor  of  maintaining  the 
Union,  whilst  three-fourths  of  those  of  Missouri  voted  in  that  way.  Kentucky 
has  been  treated  with  kindness  and  conciliation;  no  martial  law,  no  military 
oppression,  but  slight  abuse  even  of  military  power.  So  soon  as  she  was  com- 
pelled to  take  sides  in  the  war,  she  frankly,  cordially,  ranged  herself  on  the 
side  of  the  government,  and  though  a  fourth  of  her  territory  was  under  the 
domination  of  invading  rebels,  has  sent  more  volunteers  into  the  field  than 
any  other  State  in  proportion  to  her  whole  population.  Under  some  malign, 
misguiding  influence  operating  upon  the  Administration,  Missouri  was  treated 
very  differently.  Without  going  into  particulars,  suffice  it  to  say  that  she  was 
treated  with  rigor.  Whatever  benefit  is  .derivable  from  the  application  of 
the  law  of  war  or  martial  law  was  fully  tested.  The  result  we  all  know. 
Thousands  of  atrocious  murders  perpetrated  on  both  sides,  and  at  least  one- 
third  of  the  State  desolated  of  both  population  and  property  ;  whilst  in  Ken- 
tucky there  has  been  but  few  murders  and  comparatively  very  little  destruc- 
tion of  private  property.  What  amount  of  volunteers  Missouri  has  sent  to 
aid  the  government  the  writer's  information  does  not  enable  him  to  state,  but 
it  is  notorious  that,  first  and  last,  at  least  fifty  thousand  of  her  sons  have 
turned  out  in  aid  of  the  rebellion,  or  in  home  resistance  to  what  was  deemed 
unconstitutional  oppression.  Whilst,  for  the  rest  of  this  war,  it  will  require 
full  twenty  thousand  men  in  Missouri  to  keep  her  in  subjection,  the  govern- 
ment need  not  have  a  man  in  Kentucky  to  keep  her  in  loyalty. 

The  opposite  results  from  these  two  opposite  courses  of  policy  must,  to  say 
the  least,  forever  leave  it  in  grave  doubt  whether  in  this  country  it  will  aid, 
or  rather,  whether  it  will  not  prejudice  the  government's  efficiency  by  resort- 
ing to  unconstitutional  measures  of  coercion. 


16 

An  illustration  can  be  given  which  will  serve  to  make  New  Englanders  at 
least  appreciate  the  beauties  of  martial  law.  Gen.  Jackson  said  in  a  letter, 
and  frequently  asseverated  in  conversation,  that  he  would  have  hung  the  lead- 
ers of  the  Hartford  Convention  if  he  had  been  commander  of  the  military 
district  in  which  it  sat.  It  was  notorious,  or  at  least  it  was  generally  believed, 
that  the  purpose  of  that  Convention  was  to  bring  about  the  secession  of  New 
England  from  the  Union.  So  prevalent  was  this  belief,  that  if  General  Jack- 
son had  actually  hung  those  leaders  under  his  idea  of  his  military  power,  or 
under  martial  law,  a  large  majority  of  the  inconsiderate  part  of  the  nation 
would  have  applauded  the  act  What  would  have  been  the  consequence  ? 
Would  that  have  silenced  the  opposition  in  New  England  ?  So  far  from  that, 
it  would  have  been  the  signal  for  an  unanimous  revolt  that  would  have  per- 
manently carried  New  England  out  of  the  Union.  It  would  have  furnished 
a  justification  or  apology  for  a  revolt  and  secession  which  otherwise  would 
have  been  without  just  cause  or  plausible  excuse. 

Arbitrary,  despotic  measures  can  never  be  politic  measures  to  use  against 
Americans  for  bringing  them  under  obedience  to  the  law,  especially  if  those 
measures  are  tainted  with  illegality  or  usurpation.  The  exercise  of  usurped 
despotic  power  over  an  enlightened  American  agonizes  every  fibre  of  his 
moral  sensorium.  There  is  nothing  he  holds  in  greater  abhorrence.  The  cel- 
ebrated Edmund  Burke,  in  his  memorable  denunciation  of  arbitrary  power, 
declared  that  the  people  themselves  could  not  even  by  their  own  voluntary 
compact  be  rightfully  subjected  to  arbitrary  power — that  such  a  compact 
would  be  void.  The  people  of  Kentucky  fully  adopted  this  sentiment,  and 
gave  it  a  sort  of  consecration  by  the  following  clause  of  their  Constitution: 
"  That  absolute,  arbitrary  power  over  the  lives,  liberty,  and  property  of  free- 
men exists  no  where  in  a  republic  —  not  even  in  the  largest  majority." 


CONFISCATION. 


"All  legislative  powers  herein  granted  shall  be  vested  in  Congress.  The 
Executive  power  shall  be  vested  in  a  President.  The  Judicial  power  shall 
be  vested  in  one  Supreme  Court"  &c  — [Co».  U.  S. 

•'  The  powers  of  the  government  are  divided  into  three  distinct  departments 
and  confided  to  separate  bodies  of  magistracy.  It  is  of  the  last  importance 
to  the  purity  of  our  institutions  that  this  division  of  powers  should  be  pre- 
served and  this  barrier  against  the  encroachment  of  one  department  upon 
another  should  be  properly  kept  up."  Gaines  vs.  Buford  1.  Dana  505,  de- 
cided in  1833.  So  also  has  it  been  held  by  the  Supreme  Court  and  all  the 
State  Appellate  Courts. 

"  To  enjoin  what  shall  be  done  or  what  left  undone,  and  to  secure  obedi- 
ence to  the  injunction  by  prescribing  appropriate  penalties,  belongs  exclu- 
sively to  legislation.  To  ascertain  a  violation  of  such  injunction  and  inflict 
the  penalty,  belongs  to  the  judicial  function." 

"  So  far  as  the  act  in  question  undertakes  to  divest  Gaines  of  his  title  and 
vest  it  in  the  State,  it  is  a  legislative  infliction  of  the  penalty;  it  is  an  as- 
sumption to  that  extent  of  judicial  magistracy  without  affording  the  accused 
the  benefit  of  those  forms  and  guards  of  trial  which  are  his  constitutional 
right  whenever  a  citizen  is  sought  to  be  punished  either  in  his  person  or  by 
forfeiture  of  his  property,  for  alleged  violations  of  the  penal  enactions  of  the 
State.  The  right  to  forfeit  is  merely  an  incident  ot  the  power  to  punish 
guilt  Without  the  guilt  the  forfeiture  cannot  be  incurred.  The  guilt  can- 
not be  ascertained  by  the  Legislature,  nor  otherwise  than  by  a  direct  crimi- 
nal procedure  of  some  sort  and  a  judicial  determination  thereon." — 1  Dana 
506,  510. 

"  No  bill  of  attainder  shall  be  passed."  "No  State  shall  pass  any  bill 
of  attainder." — Con.  U.  S. 

"  Sills  of  attainder  are  said  by  Woodson,  in  his  lectures,  to  be  acts  of  the 
supreme  power  pronouncing  capital  sentences  where  the  Legislature  assumes 
judicial  magistracy,  and  bills  of  pains  and  penalties  those  which  inflict  milder 
punishments.  But  it  is  believed  that  bill  of  attainder  is  a  generic  teria, 
comprehending  both  description  of  acts.  Such,  at  least,  is  believed  to  be  its 
true  signification,  as  used  in  our  constitutions.  Thus  it  is  said  by  the  Su- 
preme Court  in  Fletcher  vs.  Peck,  6  Cranch,  138 :  'A  bill  of  attainder  may  af- 
fect the  life  of  an  individual,  or  may  confiscate  his  property,  or  both."  So, 
also,  it  is  said  by  Judge  Tucker  in  his  edition  of  Blackstone,  vol.  1,  page  292: 
'Bills  of  attainder  are  legislative  acts  passed  for  the  especial  purpose  of  at- 
tainting particular  individuals  of  treason  or  felony,  or  inflicting  pains  and 
penalties  beyond  or  contrary  to  common  law.'  That  the  term  should  be  re- 
ceived in  the  large  sense  thus  given  to  it,  is  consonant  with  the  true  republican 
character  of  our  institutions.  A  condemnatory  act  of  the  Legislature  inflict- 
ing upon  an  individual,  or  class  of  individuals,  pains  and  penalties  is  as  much 
2 


18 

within  the  reason  of  the  prohibition  as  if  it  inflicted  capital  punishment. 
They  are  both  equally  hostile  to  the  principles  of  civil  liberty  and  the  spirit 
of  our  written  constitutions.  They  are  equally  engines  of  tyranny  and  op- 
pression— equally  unsuited  to  the  government  of  a  free  people/" — 1  Dana, 
509. 

"  Bills  of  attainder  have  generally  designated  their  victims  by  name,  but 
they  may  do  it  also  by  classes,  or  by  general  description  fitting  a  multi- 
tude of  persons.  Either  mode  is  equally  liable  to  moral  and  constitutional 
censure.  Nor  will  these  suggestions  be  answered  by  the  obvious  difficulty  if 
not  impracticability  of  enforcing  forfeiture  by  direct  criminal  proceedings 
against  such  a  host  of  unknown  delinquents.  If  the  power  attempted  to  be 
assumed  is  a  wholesome  one,  and  was  wisely,  equitably  executed  in  this  in- 
stance, it  will  be  a  matter  of  regret  that  other  and  higher  considerations  in- 
duced the  framers  of  the  Constitution  to  withhold  from  the  Legislature  the 
power  of  giving  such  wholesale,  summary  redress.  If  on  the  contrary  the 
existence  of  such  power  would  be  noxious  to  the  common  weal  and  in  this 
instance  its  exercise  was  oppressive,  unwise,  and  unjust,  then  it  will  be  mat- 
ter of  gratulation  that  the  wisdom  of  the  Constitution  has  secured  the  com- 
munity against  such  extensive  oppression,  and  that  the  very  extent  of  the  evil 
intended  is  a  security  against  its  perpetration.  But  with  this  we  have 
nothing  to  do.  The  validity  of  the  act  must  be  tested  without  regard  to 
those  qualities." — 1  Dana,  510 — 512. 

Judge  Story,  3  Com.  211,  speaking  of  bills  of  attainder,  says  :  "  The  injus- 
tice and  iniquity  of  such  acts,  in  general,  constitute  an  irresistible  argument 
against  the  existence  of  the  power.  In  a  free  government  it  would  be  intol- 
erable ;  and  in  the  hands  of  a  reigning  faction,  it  might  be,  and  probably 
would  be,  abused  to  the  ruin  and  death  of  the  most  virtuous  citizens.  Bills 
of  this  sort  have  been  most  usually  passed  in  England  in  times  of  rebellion, 
or  of  gross  subserviency  to  the  crown,  or  of  violent  political  excitements;  pe- 
riods at  which  all  nations  are  liable  (as  well  the  free  as  the  enslaved)  to  for- 
get their  duties  and  to  trample  on  the  rights  and  liberties  of  others.  During 
the  American  Revolution  this  power  was  used  with  a  most  unsparing  hand; 
and  it  has  been  a  matter  of  regret  in  succeeding  times,  however  much  it  may 
have  been  applauded  flagrante  bello." 

This  view  of  justice  and  policy  has  received  our  national  corroboration, 
and  the  repugnance  of  enlightened  modern  legislation  to  confiscation  in  pun- 
ishing crime  has  been  amply  illustrated.  Congress  has  never  yet  so  used  its 
power  to  punish  treason,  and  it  is  believed  that  every  one  of  our  States  has 
abolished  that  forfeiture  of  estate  which  was  the  common  law  incident  to  at- 
tainders for  every  other  sort  of  felony.  Vengeance,  not  policy,  must  be  the 
ruling  motive  in  any  attempt  to  confiscate  the  estates  of  five  millions  of 
rebels. 

"No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  infamous 
crime  unless  on  a  presentment  or  indictment  of  a  grand  jury,  except  in  cases 
arising  in  the  land  or  naval  forces,  or  in  the  militia  when  in  actual  service,  in 
time  of  war  or  public  danger;  nor  shall  any  person  be  deprived  of  life,  liber- 
ty, or  property,  without  due  process  of  law;  nor  shall  private  property  be 
taken  for  public  use  without  just  compensation." — Con.  U.  S. 

Without  due  process  of  law,  or  the  equivalent  phrase,  by  the  law  of  the 
land,  means,  according  to  Lord  Coke,  2  Inst.  50,  "  so  that  no  man  be  taken, 
imprisoned,  or  put  out  of  his  freehold  without  indictment  or  presentment  of 
good  and  lawful  men,"  &c.,  &c.  "Against  this  ancient  and  fundamental  law 
of  Magna  Charta,"  says  he,  "  I  find  an  act  of  Parliament  made,  that  justices 
without  any  presentment  or  finding  of  twelve  men,  upon  a  bare  information, 
should  have  power  to  hear  and  determine  all  offences  committed  against  any 
statute.  By  color  of  which  act,  shaking  this  fundamental  law,  it  is  not  credi- 
ble what  horrible  oppressions  and  exactions,  to  the  undoing  of  infinite  num- 
bers of  people,  were  committed  throughout  England  by  Justices  Empson  and 


19 

Dudley."  Such,  also,  is  the  signification  given  to  those  phrases  by  the  most 
eminent  American  jurists.  See  2  Kent's  Com.  10 — 3  Story's  Com.  661,  and 
1  Tuck.  Bl'k.  304.  The  inference  is,  that  no  man  can  be  divested  of  the  right 
or  title  to  his  property  by  mere  legislative  action,  without  the  co-operation  of 
a  regular  judicial  investigation  and  condemnation.  It  being  the  unanimous 
concession  heretofore  of  all  parties,  abolitionists  alone  excepted,  that  Con- 
gress has  no  power  of  emancipation  within  a  State,  it  would  be  doubtful 
whether  Congress  could  in  any  mode  affix  emancipation  as  a  penalty  for  the 
treason  of  a  slave  owner;  but  even  if  Congress  had  such  power,  when  pur- 
sued in  a  legitimate  manner,  it  would  still  also  follow  that  its  sole  action, 
proprio  vigore,  without  judicial  co-operation,  could  .jaever  emancipate  the 
slaves  of  rebels  or  traitors.  BSBtlCTOffc  JJlBflfiinf 

Another  reason  why  Congress  cannot  emancipate  slaves :  It  has  always 
been  conceded  that  Congress  cannot  interfere  with  the  municipal  regulations 
of  a  State,  at  least  with  such  of  its  laws  as  define  what  shall  be  property,  or 
direct  how  it  shall  be  conveyed  or  managed.  All  the  slaveholding  States  have 
very  special  regulations  as  to  emancipation,  built  upon  the  policy  of  prevent- 
ing an  undue  increase  of  free  and  pauper  negroes.  This  policy  the  Federal 
Government  can  in  no  way  interfere  with.  If  it  becomes  the  owner  of  slaves, 
as  it  legitimately  may  in  various  ways,  it  must  hold  as  all  other  owners  of 
property  do,  subject  to  the  law  of  the  State,  which  precludes  the  emancipation 
of  slaves  otherwise  than  in  the  mode  pointed  out  for  other  owners  of  such 
property.  This  is  practically  illustrated  by  the  requisition  uniformly  made  of 
a  renunciation  by  the  State  of  its  right  to  tax  any  real  estate  the  Federal  Govern- 
ment is  about  to  buy  for  national  use.  Whether  the  policy  be  right  or  wrong, 
which  restrains  a  slave-owner's  right  of  emancipation,  because  the  unfettered 
right  might  cause  a  public  nuisance  or  injury  to  similar  property  of  other 
owners,  Congress  in  tne  management  of  its  slave  property  can  have  neither 
power  or  right  to  violate  that  policy. 

"  Congress  shall  have  power  to  declare  the  punishment  of  treason,  but  no 
attainder  of  treason  shall  work  corruption  of  blood  or  forfeiture,  except  du- 
ring the  life  of  the  person  attainted." — Con.  U.  S. 

Congress  having  been  forbid  to  pass  any  bill  of  attainder,  this  clause  must 
have  exclusive  reference  to  judicial  attainder.  In  that  sense  it  precludes  Con- 
gress from  all  power  to  prescribe  a  forfeiture,  in  any  mode,  beyond  the  life 
estate  of  the  offender,  in  any  description  of  property,  as  a  penalty  for  treason. 
Consequently  Congress  can  under  no  view  of  its  power  emancipate  a  slave  by 
way  of  forfeiture  for  longer  than  the  lifetime  of  its  owner,  and  so  to  exercise 
the  power  would  be  obviously  unjust,  because  of  the  injury  that  would  there- 
by be  inflicted  on  the  ultimate  owner. 

Judge  Story,  in  commenting  on  this  clause  (3  Comm.  172),  gives  thus  the 
reason  for  this  limitation  of  the  power  of  forfeiture:  "  It  is  surely  enough  for 
society  to  take  the  life  of  the  offender,  as  a  just  punishment  for  his  crime, 
without  taking  from  offspring  and  relatives  that  property  which  may  be  the  only 
means  of  saving  them  from  poverty  and  ruin.  The  history  of  other  countries 
abundantly  proves  that  one  of  the  strong  incentives  to  prosecute  such  of- 
fences as  treason  has  been  the  chance  of  sharing  in  the  plunder  of  the  victims. 
Eapacity  has  thus  been  stimulated  to  exert  itself  in  the  service  of  the  most 
corrupt  tyranny  ;  and  tyranny  has  thus  been  furnished  with  new  opportuni- 
ties of  indulging  its  malignity  and  revenge,  of  gratifying  its  envy,  and  of  in- 
creasing its  means  to  reward  favorites,  and  secure  retainers  for  the  worst 
deeds." 

The  restriction  of  the  power  of  Congress  as  to  extent  of  forfeiture  is  con- 
fined to  attainder  for  treason,  as  such  is  the  fair  construction  of  the  clause, 
unless  by  liberal  intendment  the  kindred  offence  of  sedition  be  also  included. 
But  that  intention  is  also  to  be  inferred  from  the  fact  that  Congress  is  not  so 
restricted  as  to  the  other  crimes  it  is  expressly  authorized  to  punish.  The 
fear  of  the  power  being  abused  by  a  dominant  party  for  the  purpose  of  per- 
secution did  not  apply  to  any  crime  but  that  of  treason  and  its  cognates. 


20 

As  all  loyal  Union  men  look  forward  to  the  day  when  the  present  execrable 
rebellion  will  be  suppressed  and  the  law  restored  to  its  supremacy,  it  is  obvi- 
ously worse  than  idle  to  resort  to  any  mode  of  confiscation  or  forfeiture  which 
the  law,  when  so  restored,  will  not  recognize  as  legal  and  valid. 

The  proclaimed  emancipation  of  three  million  of  slaves  is  equivalent  to  the 
proclamation  of  exterminating  war  against  all  the  men,  women,  and  child- 
ren of  the  South,  without  regard  to  a  million  of  the  white  population  against 
whom  no  political  fault  can  properly  be  alleged,  except  from  circumstances 
which  they  could  not  control,  and  of  which  they  have  been  made  the  victims. 
It  will  also  bring  probable  destruction  upon  most  of  the  negroes,  who  are  free 
from  all  fault  towards  the  Government. 

The  adoption  of  such  a  policy  would,  in  the  estimation  of  all  Christendom, 
rule  the  korth  out  of  the  pale  of  civilized  States,  and  place  the  war  out  of 
the  rules  and  usages  of  warfare  among  civilized  nations.  So  says  our  Declara- 
tion of  Independence,  than  which  there  can  be  no  higher  authority  among 
Americans.  There  never  was  a  people  so  craven  as  not  to  meet  such  a  meas- 
ure with  the  severest  retaliation.  The  war  would  be  carried  on  by  both  sides 
under  what  is  termed  the  black  flag.  That  pretext,  if  not  justification,  which 
England  and  France  are  apparently  so  eagerly  seeking  for,  would  be  afforded 
them  on  the  score  of  humanity,  as  was  done  in  the  war  between  Turkey  and 
Greece. 

The  power  to  inflict  such  terrible  calamity  on  the  nation — such  an  indeli- 
ble stigma  on  its  character,  is  claimed  as  part  of  the  law  of  war.  The  power 
to  wage  the  war  is  derived  exclusively  from  the  acts  of  Congress,  the  power 
to  pass  which  is  derived  exclusively  from  the  Constitution.  What  Congress 
cannot  do  directly  it  cannot  accomplish  indirectly  through  the  agency  of  the 
army.  Congress  having  no  abolition  power,  it  can  institute  no  measure,  how- 
ever indirect,  which  has  abolition  for  its  object — such  as  enticing  slaves  to 
our  camps,  or  otherwise  exciting  servile  war.  If  that  object  cannot  be  at- 
tained directly  for  the  great  purpose  of  philanthropy,  national  peace,  and 
prosperity,  most  surely  abolition  cannot  be  used  indirectly  as  a  means  for  at- 
taining any  other  purpose — such  as  aid  in  carrying  on  the  war. 

It  cannot  be  pretended  that  the  Constitution  expressly  sanctions  or  con- 
templates the  employment  of  such  means  in  suppressing  rebellion.  Its 
framers  had  recently  been  rebels — had  achieved  their  freedom  by  rebellion, 
and  could  not  have  held  rebellion  in  such  abhorrence  as  to  contemplate  such 
inhuman,  sanguinary  means  for  its  suppression.  Such  presumption  would  be 
foul  calumny  on  their  virtue,  their  humanity,  and  their  intelligence.  They 
explicitly  said  what  entirely  negatives  any  such  idea,  and  what  impliedly  for- 
bids the  employment  of  such  means.  They  made  it  the  express  duty  of  the 
Federal  Government  to  suppress  slave  insurrection.  Nothing  could  be  more 
absurd  than  to  suppose  permission  to  incite  such  insurrections,  when  as  soon 
as  they  occur  the  Government  is  bound  to  suppress  them. 

The  Constitution  gives  power  to  Congress  "  to  make  rules  for  the  govern- 
ment of  the  land  and  naval  forces,"  that  is,  to  govern  the  war.  Every  officer, 
from  the  President  down,  would  readily  admit  that  he  is  bound  to  obey  the 
rules  and  articles  of  war  established  by  Congress.  Now  suppose  that  all  the 
clauses  of  the  Constitution,  protecting  the  personal  liberties  and  private  prop- 
erty of  citizens,  were  embodied  in  the  rules  and  articles  of  war  by  Congress, 
no  man,  not  even  a  soldier,  would  doubt  that  they  must  be  obeyed.  Yet 
without  any  such  Congressional  adoption,  those  clauses  are  to  every  intent 
parts  of  the  rules  and  articles  of  war  so  far  as  they  apply,  and  on  every  score 
are  entitled  to  better  obedience,  stricter  observance,  than  those  enacted  by 
Congress.  What  doubt  then  that  the  Constitution  is  the  law  of  the  war? 
This  utterly  extinguishes  all  idea  of  the  Constitution  being  made  for  time  of 
peace  and  not  for  war. 

The  power  of  emancipation  is  also  claimed  under  the  law  of  necessity;  but 
neither  does  that  law  allow  it,  even  according  to  the  construction  given  to  it 


21 

by  the  higher  law  men  themselves.  They  admit  there  must  be  an  actual,  not 
a  mere  fictitious  necessity  for  the  intervention  of  their  law  and  the  shoving  aside 
of  the  Constitution.  Such  necessity  does  not  exist,  nor  even  its  semblance. 
That  the  present  causeless,  infamous  rebellion  is  hard  to  put  down  cannot  be 
denied.  But  that  the  existence  of  the  people  of  the  loyal  States,  or  that  of 
their  Government,  is  in  any  sort  of  peril  from  the  rebels,  is  what  no  truthful 
man  will  considerately  affirm.  We  are  in  round  numbers  twenty  million 
against  five.  When  we  consider  our  greater  condensation  of  population,  our 
greater  facility  of  railroad  and  water  transportation,  our  exclusive  naval  pow- 
er, our  greater  pecuniary  and  other  resources  for  the  equipment  and  mainte- 
nance of  armies,  this  disparity  of  mere  numbers  should  be  doubled  in  estima- 
ting the  comparative  military  strength  of  the  two  sections,  and  upon  a  very 
low  estimate  the  ratio  fixed  at  eight  men  to  one.  It  is  merely  absurd  to  sur- 
mise that  the  eight  can  be  conquered  by  the  one,  though  the  one  in  a  defen- 
sive war  may  long  keep  the  eight  at  bay.  What  will  merely  expedite  or  fa- 
cilitate putting  down  the  rebellion  falls  far  short  of  the  requirement  of  the 
higher-law  problem  of  necessity. 

But  we  are  told  the  expense  of  the  war  is  so  enormous — a  million  and  a 
half  a  day — as  to  render  its  speedy  termination  an  actual  necessity.  That 
enormous  expenditure  is  not  at  all  necessary,  not  more  than  the  third  of  it 
for  the  safety  of  our  people  or  their  Government — it  is  the  result  of  a  foolish 
effort  to  do  what  is  impracticable,  with  any  amount  of  expenditure,  any  aid  de- 
rivable from  emancipation  proclamations  :  that  is,  the  sudden  suppression  of  the 
rebellion  and  the  submission  of  the  traitor  States.  Time  will  be  required  for 
that.  It  is  unavoidably  a  slow  protracted  process  that  ever  brings  all  that 
about.  A  million  of  men,  with  a  daily  expenditure  of  two  million  of  money, 
cannot  accomplish  it  without  the  aid  of  time.  With  that  aid  it  no  doubt  can 
be  and  wfll  be  ultimately  accomplished,  unless  there  should  happen  some  one 
of  several  causes  for  its  prevention. 

Prominent  among  these  would  be  a  course  of  policy  inducing  a  servile  war, 
with  its  accompaniment,  a  war  of  mutual  extermination,  justifying  and  en- 
suring European  intervention.  Or  without  a  servile  war,  a  law  of  general 
confiscation  of  all  Southern  property,  accompanied  by  a  military  success 
which  will  drive  the  South  to  desperation,  and  cause  the  buying  of  French 
protection,  by  the  cession  of  Louisiana  and  Western  Florida,  and  even,  if  ab- 
solutely necessary,  of  Texas  also.  Or  by  the  bankruptcy  of  the  Government. 

This  last  may  happen  during  the  present  year.  Waiving  all  discussion  for 
the  present  of  the  two  former,  let  us  consider  a  little  the  chance  of  the  latter 
calamity. 

It  would  be  rash  criticism  which  should  venture  to  censure  the  course  of 
the  very  intelligent  Secretary  of  the  Treasury  without  knowing  what  he  knows, 
and  without  seeing  affairs  in  the  light  with  which  it  is  presumable  that  he 
sees  them.  But  if  such  criticism  were  allowable,  to  the  uninitiated  it  might 
be  respectfully  suggested  that  he  made  a  great  mistake  in  not  using  every  ef- 
fort from  the  first  to  obtain  a  European  market  for  our  bonds.  There  is  not 
now  in  this  country,  nor  will  there  be  for  half  a  century,  dormant,  unemployed 
capital  enough  to  absorb  the  enormous  amount  of  bonds  he  will  have  to  sell 
during  the  present  year,  to  say  nothing  of  next  year.  There  is  not  now,  and 
probably  will  not  be  this  year,  enough  such  capital  seeking  permanent  invest- 
ment in  those  bonds  to  the  amount  of  even  a  third  of  what  he  will  need. 
Whatever  he  may  do  towards  forcing  or  coaxing  the  bonds  into  the  hands  of 
those  who  cannot  permanently  hold  them,  will  only  serve  to  force  them  upon 
the  market  and  precipitate  their  fall,  possibly  as  low  as  sixty  cents  to  the  dol- 
lar before  the  year  is  out.  Any  indication  of  such  rapid  depreciation  will 
effectually  clcse  the  European  market.  What  induces  the  belief  of  the  dearth 
of  dormant  capital  here,  in  addition  to  our  comparative  high  rate  of  interest, 
is  the  fact  that  nearly  all  our  canals  and  railroads  have  been  built  with  foreign 
capital.  For  some  years  prior  to  1860  it  was  estimated  that  not  less  than  six- 


22 

ty  million  annually"of  foreign  capital  were  invested  in  our  State  bonds.  If  he 
lias  to  depend  upon  assignats,  any  mode  of  currency  largely  in  excess  of  the 
wants  or  convenient  use  of  the  nation,  their  certain  fate  is  well  known  to  alL 
They  can  serve  only  as  a  very  short  temporary  expedient.  The  Secretary  is  not 
old  enough  to  have  witnessed  it,  but  the  experience  of  the  last  war  with  En- 
gland gave  no  cause  for  confidence  in  our  people  for  standing  heavy  war 
taxation.  The  writer  well  recollects  that  it  was  the  opinion  of  intelligent 
men  at  that  time,  that  if  the  war  had  lasted  a  year  longer  the  Federalists 
would  have  got  into  power.  The  Secretary  ought  not  to  rely  too  much  upon 
that  source  of  revenue,  whatever  the  enthusiastic  coercives  may  tell  him  as 
to  the  present  temper  of  the  people  on  that  subject.  There  seems  no  al- 
ternative against  extreme  pecuniary  embarassment,  but  the  reduction  of  the 
expenditures  within  the  means  of  the  Government 

The  way  to  do  this  is  to  fall  back  upon  something  like  the  original  plan  of 
Gen.  Scott  for  conducting  the  war,  which  was,  after  taking  New  Orleans,  to 
make  it  altogether  a  defensive  war — leaving  it  to  time,  the  pressure  of  taxa- 
tion, and  the  loss  of  trade,  to  restore  the  people  of  the  South  to  their  senses. 
This  can  be  done  with  an  army  of  about  two  hundred  thousand  men,  which 
will  be  a  reduction  of  two-thirds  of  the  expense.  Subsequent  events  would 
now  require  the  retention  of  Beaufort,  the  taking  of  Pensacola,  and  the  driving 
of  the  rebels  from  most  of  Tennessee. 

In  the  opinion  of  some  of  our  most  intelligent  men,  this  has  always  been  and 
still  is  the  only  certain  mode  of  obtaining  a  restoration  of  the  Union.  It  is 
not  only  accompanied  with  no  hazard  of  the  ultimate  success,  but,  as  they  have 
thought,  it  would  also  be  the  most  expeditious.  To  obtain  the  national  acqui- 
escence in  that  plan,  it  is  only  necessary  that  its  re-adoption  shall  be  prece- 
ded by  one  or  two  victories  on  a  large  scale  to  wipe  out  the  remembrance  of 
the  Bull  Run  disaster.  It  is  evident  from  Mr.  Seward's  letter  to  Mr.  Adams 
of  10th  April  last,  that  some  such  plan  must  have  been  the  one  unanimously 
agreed  upon  by  the  Cabinet  up  to  that  time.  Indeed,  something  short  of  that 
would  then  have  been  approved  by  public  sentiment.  On  the  llth  April  last 
the  writer,  in  a  publication  then  made,  recommended  a  similar  plan,  but  found 
little  or  no  co-operation  from  any  quarter.  Some  of  those  who  are  now  among 
the  intolerant,  prescriptive  coercives  even  rebuked  him  for  intemperate  zeal. 
It  was  then  still  doubtful  whether  the  Administration  meant  to  coerce  pay- 
ment of  duties.  The  departure  from  the  original  plan,  and  adopting  one  of 
invading  coercion,  is  deemed  one  of  the  most  stupendous  blunders  ever  com- 
mitted. Its  only  parallel  is  to  be  found  in  the  very  similar  one  committed  by 
the  Lord  North  ministry,  which  lost  the  American  colonies  to  the  British 
crown.  Had  they  contented  themselves  with  holding  New  York,  and  a 
vigorous  blockade,  and  for  the  rest  trusting  to  time  and  conciliation  instead  of 
coercion,  the  result  might  have  been  reversed,  leaving  it  to  the  force  of 
mere  increase  of  population  in  twenty  or  thirty  years  to  have  brought  about 
an  amicable  separation. 

The  great  benefit  from  the  re-adoption  of  the  plan,  besides  removing  all 
danger  of  permanent  separation  and  preventing  an  increase  of  sectional  ani- 
mosity, is  that  it  will  at  once  remove  all  pretext  of  necessity  for  inhuman  meas- 
ures or  for  violating  the  Constitution,  and  postpone  indefinitely  the  great  im- 
pending danger  of  its  permanent  destruction.  The  imminence  of  that  danger 
can  be  appreciated  from  the  ratification  of  all  acts  of  the  administration,  the 
character  of  the  measures  pending  before  Congress,  and  especially  from  the 
declaration  of  principles  and  opinions  made  by  leading  members  of  both 
houses.  A  specimen  of  them  is  to  be  found  in  a  recent  speech  made  in  the 
House  by  the  Chairman  of  its  Finance  Committee.  He  said : 

"The  question  recurs  how  can  the  war  be  carried  on  so  as  to  save  the 
Union.  '  Universal  emancipation  must  be  proclaimed.'  If  any  unforeseen 
emergency  should  arise  endangering  the  existence  of  the  republic,  the  sec- 
tion of  the  Constitution  which  says  '  that  the  President  shall  take  care 


23 

that  the  laws  be  faithfully  executed,'  creates  him  as  much  dictator,  for  the  time 
being,  as  a  decree  of  the  Roman  Senate  made  a  consul  dictator.  *  *  But 
when  Congress  assembled  they  would  have  the  same  full  powers.  If  no  other 
means  were  left  to  save  the  republic  from  destruction,  1  believe  we  have 
power  under  the  Constitution,  and  according  to  its  express  provision,  to  de- 
clare a  dictator,  without  confining  the  choice  to  any  officer  of  the  Govern- 
ment." 

This  man,  after  the  utterance  of  these  sentiments,  was  neither  called  to  or- 
der, hissed,  nor  kicked  out  of  the  House.  Yet  simultaneously  .with  their  ut- 
terance the  Senate  was  trying  one  of  its  members  for  disloyalty,  and  his  ex- 
pulsion actually  took  place,  because,  among  other  things,  he  never  voted  for 
an  appropriation  for  carrying  on  the  war,  that,  according  to  the  avowed  opin- 
ions of  Senators,  being  full  proof  of  such  disloyalty  as  to  authorize  his  expulsion. 
If  these  are  not  rapid  strides  towards  absolute  despotism  it  is  difficult  to  un- 
derstand what  would  serve  for  proof  of  such  tendency.  No  baser  moral  trea- 
son ever  befouled  human  lips  than  the  words  uttered  by  this  man,  yet  he  re- 
ceived not  the  mildest  rebuke,  whilst  his  party  in  the  Senate  was  treating  it 
as  a  ground  of  expulsion,  that  a  Senator  did  not  vote  in  accordance  with  the 
views  of  the  majority.  All  this,  too,  claimed  to  be  said  and  done  "  under  the 
Constitution,  and  according  to  its  express  provisions."  Congress,  with  full 
power  to  expel  members  who  do  not  vote  to  suit  them,  and  to  establish  a  dic- 
tator over  us  whenever  it  may  choose  to  think  it  required  by  public  safety ! ! 
This  ranter  after  universal  emancipation,  this  fanatic  so  eager  for  the  free- 
dom of  negroes,  is  ready  and  willing,  claims  the  power  in  Congress,  to  make 
slaves  of  his  white  countrymen ! !  He  ought  never  to  have  been  born  an 
American.  He  is  fit  only  to  have  been  born  a  Russian  serf,  and  kept  a  serf 
for  life.  He  is  the  recorder  of  his  own  infamy.  He  has  made  himself  the  en- 
during mark  for  the  unmoving  finger  of  national  scorn.  With  six  hundred 
thousand  armed  men  in  the  field,  and  these  advocates  of  dictatorship  in  Con- 
gress, much  the  greatest  of  our  national  perils  will  begin  when  the  rebel- 
lion has  been  suppressed.  The  reduction  of  the  army  beforehand  is  the 
only  way  to  avoid  that  peril 

A  bill  was  presented  to  the  House  of  Representatives,  which  is  probably 
now  pending  before  that  body,  for  the  purpose  of  confiscating  all  the  proper- 
ty in  the  eleven  seceding  States  at  a  single  blow.  It  names  a  day,  by  which 
if  the  taxes  apportioned  by  Congress  on  those  States  are  not  paid,  the  confisca- 
tion shall  take  effect,  and  the  title  become  vested  in  the  United  States.  This 
is  an  attempt,  by  a  small  cunning,  to  pettifog  a  confiscation  and  emanci- 
pation bill  round  the  obstructions  of  the  Constitution.  The  deviser  of  the 
scheme  had  seen  sheriffs  selling  property  for  non-payment  of  taxes,  with- 
out any  judicial  order  for  so  doing,  and  not  understanding  why  it  can  be  so 
done  without  violating  the  Constitution,  fancies  he  can  slip  his  bill  through 
the  Constitution  by  the  aid  of  that  brilliant^analogy.  The  ignorance  of  the 
Constitution  betrayed  in  these  times  by  men  in  high  political  station  is  really 
marvelous.  The  projector  of  this  device  wants  to  resuscitate  the  old  Articles 
of  Confederation,  make  a  requisition  on  the  States,  and,  for  failure  to  comply, 
inflict  this  sort  of  summary  punishment — a  punishment  for  which  there  is  not 
the  slightest  warrant,  either  in  those  Articles  or  the  present  Constitution.  If 
he  could  be  sent  back  for  a  day  or  two  to  a  law  school,  he  would  there  learn, 
that  to  get  rid  of  the  old  mode  of  requisition  upon  the  States,  and  to  impose 
the  tax  directly  upon  the  separate  individual  citizens,  was  a  leading  motive 
for  adopting  the  Constitution,  and  that  it  does  not  permit  any  requisition  by 
Congress  upon  the  States.  He  has  also  some  recollection  from  his  reading  of 
outlaws  and  outlawry,  and  suspecting,  from  the  way  the  Constitution  reads,  he 
might  not  be  able  to  get  at  a  rebel  or  his  property  by  way  of  punishment  for 
treason  without  the  instrumentality  of  the  courts,  by  a  single  flourish  of  his 
legislative  pen  he  outlaws  some  five  million  of  our  citizens,  and  then  he  thinks 
they  will  not  be  entitled  to  the  protection  of  the  Constitution  or  any  other 


24 

law.  He  first  puts  them  "  out  of  the  law,"  and  then  fires  at  them  his  tremen- 
dous confiscation  blunderbuss.  He  is  no  petty  larceny  filcher  from  single 
men  one  at  a  time,  but,  with  a  most  lofty  ambition,  at  one  fell  swoop  strips  the 
people  of  eleven  States  of  all  their  property,  and  vests  it  in  the  government. 
What  a  pity  that  such  commendable  ambition  should  be  thwarted  by  that  vex- 
atious prohibition  against  bills  of  attainder ! 

The  talented  leader  of  the  abolitionists  out  of  Congress  insists  that  the  Con- 
stitution is  already  all  gone,  broken  up  and  destroyed,  and  that  for  the  pres- 
ent we  can  work  along  well  enough  without  one,  but  as  soon  as  we  have  leis- 
ure the  nation  must  make  a  constitution.  His  friends  in  Congress  seem  to  be 
acting  upon  his  idea?  One  of  them,  a  leading  Senator,  exclaimed  in  a  speech 
lately,  "  By  heaven,  if  I  was  your  President,  and  you  did  not  give  me  the 
necessary  authority,  I  would  usurp  it,  and  you  might  help  yourselves."  What 
a  beautiful  constitution  it  will  be  that  these  men  will  give  us  ? 

The  confiscation  bill  reported  by  the  Senate  committee  is  another  pettifog- 
ging dodge  to  get  round  the  Constitution,  and  punish  treason  with  forfeitures, 
without  the  aid  of  courts  and  juries.  It  attempts  to  assimilate  forfeiture  for 
treason  to  forfeiture  for  smuggling,  and  directs  the  forfeiture  to  be  enforced 
by  a  sort  of  proceeding  in  rem,  without  any  sort  of  jury  trial.  This  attempt- 
ed trickery  on  the  Constitution  cannot  avail;  the  courts  will  not  lend  their 
aid.  That  mode  of  punishing  smuggling  is  a  sort  of  anomaly  in  our  jurispru- 
dence, which,  so  far  from  justifying  other  steps  in  the  same  direction,  is  liable 
to  great  doubt  as  to  its  own  constitutionality.  If  it  had  been  seriously  resist- 
ed in  the  first  instance,  it  is  doubtful  whether  it  would  have  received  judicial 
sanction.  Following  English  precedent,  without  particular  attention  to  the 
application  of  such  precedent  under  our  Constitution,  it  was  treated  as  a 
quasi  offence  in  the  thing  smuggled — like  the  old  law  of  deodand,  and  not  as 
an  offence  of  the  owner,  or  as  an  offence  separable  from  his.  With  much 
plausibility  it  might  have  been  supposed  that  such  mode  of  procedure  was  a 
depriving  the  owner  of  his  property  by  "due  process  of  law,"  within  the 
meaning  of  the  Constitution,  that  being  the  established  mode  in  England,  not- 
withstanding the  clause  in  magna  charta,  the  same  as  that  in  our  Constitu- 
tion, against  depriving  a  citizen  of  his  property  without  due  process  of  law. 
Let  this  conjecture  be  right  or  wrong,  whatever  the  principle  upon  which  such 
procedure  is  based,  it  manifestly  admits  no  extension  without  impairing  the 
sedulously  guarded  right  of  trial  by  jury.  As  to  property  lying  in  rebel 
States,  the  bill  authorizes  its  confiscation  and  sale  by  any  person  the  Presi- 
dent may  appoint,  that  person,  of  course,  to  be  the  judge  of  the  guilt  of  the 
owner,  thus  constituting  him  both  judge  and  jury. 

The  author  of  the  bill  said  in  his  speech,  that  the  intention  was,  though  the 
bill  does  not  say  so,  to  confiscate  the  real  estate  during  the  life  of  the  owner, 
but  the  personal  estate,  including  slaves,  absolutely.  He  does  not  say  where 
he  finds  authority  for  the  distinction,  nor  does  he  give  any  reason  for  it.  The 
Constitution,  in  giving  power  to  Congress  to  punish  treason,  says:  "But  no 
attainder  of  treason  shall  work  forfeiture,  except  during  the  life  of 'the  person 
attainted."  When  it  is  recollected  that,  at  common  law,  attainder  worked 
forfeiture  of  all  the  offender's  estate,  both  real  and  personal,  the  words  of  the 
Constitution  furnish  no  room  whatever  for  making  any  such  distinction.  The 
perishable  quality  of  personality  affords  no  sufficient  reason  for  arbitrarily 
making  such  distinction ;  for  the  property  can  be  sold  and  vested  in  perman- 
ent stock  by  order  of  court,  the  government  being  allowed  to  receive  the  in- 
terest, whilst  the  principal  is  reserved  for  the  ultimate  owners  after  the  death 
of  the  offender.  As  to  slaves  there  is  no  need  for  their  sale,  they  not  being 
deemed  perishable  property,  and  the  law  allowing  a  remainder  after  a  life  es- 
tate in  them. 

The  attempt  of  the  bill  to  divest  the  title  out  of  the  traitor  and  by  force  of 
its  own  action,  "  ipso  facto"  vest  it  in  the  government,  falls  directly  within 
the  prohibition  against  bills  of  attainder.  It  is  a  plain  effort  to  usurp  judicial 
magistracy,  and  inflict  punishment  directly  by  mere  legislation. 


25 

As  to  the  danger  of  a  war  with  France,  from  driving  the  South  to  despera- 
tion, that  is  a  topic  which  probably  had  better  be  hinted  at  only  rather  than 
publicly  discussed.  But  it  must  not  be  overlooked.  If  we  once  get  into  such 
a  war,  no  one  can  tell  when  it  will  cease.  Kentucky,  Missouri,  and  the  other 
States  occupying  the  upper  waters  of  the  great  river,  will  never  consent  to  let 
Louisiana  go  as  the  price  of  peace.  They  would  force  the  nation  into  another 
war  in  less  than  a  year  after  any  peace  made  on  that  basis  with  any  foreign 
or  confederate  power  or  powers  whatever.  That  is  a  national  possession  which 
their  ten  million  of  hardy  freemen  will  never  surrender,  whatever  may  be  the 
suffering  of  their  Eastern  countrymen  from  a  foreign  war.  This  ought  to 
convince  the  advocates  of  wholesale  confiscation  and  emancipation  that  the 
ordering  of  beneficent  Providence  does  not  permit  such  enormous  inhumanity 
either  to  a  debased,  despicable  pigmy-minded  fanaticism,  or  to  the  even  worse 
diabolism  of  a  raving  vengeance. 

The  following  extracts  from  the  speech  of  a  talented  and  leading  Republi- 
can Senator,  which  have  been  commended  as  "  noble  words,"  corroborate  en- 
tirely the  main  view  of  this  and  preceding  pamphlets,  and  though  it  must  be 
confessed  that  the  action  of  the  Honorable  benator  has  not  always  conformed 
to  his  precept,  he  shall  be  allowed  to  conclude  the  discussion : 

"  I  do  not  place  the  power  on  the  ground  assumed  in  some  quarters,  that  in 
times  of  war  or  rebellion  the  military  is  superior  to  the  civil  power ;  or  that,  in 
such  times,  what  persons  may  choose  to  call  necessity  is  higher  and  above  the 
Constitution.  Necessity  is  the  plea  of  tyrants,  and  if  our  Constitution  ceases 
to  operate  the  moment  a  person  charged  with  its  observance  thinks  there  is 
necessity  for  its  violation,  it  is  of  little  value.  I  hold  that  the  military  is  as 
much  subject  to  control  by  civil  power  in  war  as  in  peace. 

"  I  want  no  other  authority  for  putting  down  this  gigantic  rebellion  than 
such  as  may  be  properly  derived  from  the  Constitution.  It  is  equal  even  to 
this  great  emergency.  The  more  we  study  its  provisions,  the  more  it  is  tried 
in  troublous  times,  the  greater  will  be  our  admiration  and  veneration  for  the 
wisdom  of  its  authors. 

"  I  am  for  suppressing  this  enormous  rebellion  according  to  law,  and  in  no 
other  way.  We  are  fighting  to  maintain  the  Constitution,  and  it  especially 
becomes  us  not  to  violate  it  ourselves.  How  are  we  better  than  the  rebels,  if 
both  alike  set  at  naught  the  Constitution?  I  warn  my  countrymen  who  stand 
ready  to  tolerate  almost  any  act  done  in  good  faith  for  the  suppression  of  the 
rebellion,  not  to  sanction  usurpations  of  power  which  may  hereafter  become 
precedents  for  the  destruction  of  constitutional  liberty. 

"  While  fighting  this  battle  for  constitutional  liberty,  it  behoves  us  to  see  to 
it  that  the  Constitution  receives  no  detriment  at  our  hands.  We  will  have 
gained  but  little  in  suppressing  the  insurrection,  if  it  be  at  the  expense  of  the 
Constitution.  The  chains  that  a  bondman  wears  are  none  the  lighter  because 
they  were  forged  by  his  own  hands.  Let  us  preserve  the  Constitution  perfect 
in  all  its  parts,  with  all  its  guaranties  for  the  protection  of  life  and  liberty  un- 
impaired. ' 


NOTE. — Since  the  foregoing  was  written,  the  bill  for  seizing  railroads,  <fcc., 
has  undergone  considerable  modification,  but  it  still  seems  to  be  the  intention 
to  impress  the  employees  into  the  army,  and  subject  them  to  the  rules  and  ar- 
ticles of  war,  with  all  their  penalties. 


APPENDIX. 


Mr.  Adams  having  died  without  producing  his  promised  proof  in  favor  of 
his  position  that  the  law  of  war  superceded  civil  authority  during  war, 
some  might  believe  that  so  eminent  a  man  would  not  have  uttered  such  a 
promise  unless  he  could  certainly  make  it  good.  But  we  are  entirely  relieved 
from  any  such  presumption  by  the  fact  of  his  saying  that  the  proof  was  to 
come  from  the  law  of  nations.  The  following  extracts  are  reproduced  from 
the  writer's  pamphlet  of  1842,  to  prove  that  the  laws  of  nations,  be  they  what- 
ever they  may,  cannot  possibly  have  any  such  effect 


"As  to  Mr.  Adams's  authority,  the  laws  of  nations,  it  is  difficult  to  under- 
stand what  bearing  they  can  have  upon  a  question  of  lawful  power  within  this 
Union.  They  may  define  the  rights  of  the  conqueror  and  the  duties  of  the  con- 
quered ;  but  that  is  not  what  Mr.  Adams  means.  He  contemplates  an  unsuc- 
cessful or  undetermined  invasion  merely,  and  says  that  "  an  invaded  country 
has  all  its  laws  and  municiple  institutions  swept  by  the  board,  and  martial  law 
takes  the  place  of  them,"  Tvith  an  incidental  power  to  both  our  own  and  the  for- 
eign commander  to  emancipate  the  slaves.  Eminent  as  Mr.  Adams  is  as  an 
authority  on  the  law  of  nations,  yet  his  opinion  must  surely  yield  to  that  of  the 
whole  American  people  as  expressed  in  their  Declaration  of  Independence. 
This  very  mode  of  annoyance  towards  an  enemy,  by  inciting  a  servile  insurrec- 
tion, is  there  denounced  as  contrary  to  the  law  of  nations  and  the  usages  of 
civilized  warfare.  It  is  ranked  in  atrocity  with  that  other  infamous  practice  of 
theJEnglish  Government,  the  allying  itself  with  the  scalping-knife  and  tomahawk. 
According  to  the  better  opinion,  then,  any  invading  foreign  commander,  who 
should  issue  such  a  proclamation  as  the  one  indicated  by  Mr.  Adams,  would 
thereby  cast  himself  and  those  under  his  command  out  of  the  pale  of  the  protec- 
tion of  the  usages  of  civilized  warfare.  Much  rather,  therefore,  would  any 
commander  of  ours  be  considered  as  absolving  himself  from  the  protection  of  all 
law,  by  such  a  course,  and  subjecting  himself  to  be  rightfully  shot  by  any  one 
who  chose  so  to  rid  the  country  of  so  infamous  an  incendiary. 

"The  American  people  have  heretofore  lived  under  the  fond  delusion  that  they 
had  the  exclusive  privilege  of  making  constitutions  and  laws  for  themselves, 
and  that  the  combined  will  of  all  the  nations  of  the  earth  could  not  rightfully 
add  to  or  alter  those  laws  in  the  smallest  particular,  so  far  as  they  operate  within 
our  own  territory.  Nor  do  the  laws  of  nations  themselves  make  any  pretension 
to  the  power  asserted  by  Mr.  Adams  in  their  behalf.  There  is  no  principle  of 
international  law  better  settled,  probably  none  other  about  which  there  is  less 
difference  of  opinion,  than  that  the  laws  of  one  nation  cannot  operate  within  the 
territory  of  another ;  and,  by  consequence,  neither  can  the  combined  laws  of 
two,  three,  or  twenty  nations,  so  operate  within  the  territory  of  another  nation. 

"  There  is  a  class  of  politicians  in  this  country  who  have  long  been  suspected 
of  having  no  great  love  or  admiration  of  our  republican  institutions,  viewing 
them  as  a  useless  experiment  which  muc*  ultimately  give  away  to  monarchical 
government,  and  therefore  as  rather  impatient  for  the  advent  of  some  bold,  great 
man  sufficiently  powerful  to  do  away  with  the  idle  trumpery  of  a  constitution, 


28 

and  relieve  us  from  the  trouble  of  governing  ourselves.  I  must  confess  it  has 
been  heretofore  supposed  that  Mr.  Adams  did  not  belong  to  this  school  of  politi- 
cians. But  it  seems  he  goes  a  great  way  beyond  them.  They  were  merely 
suspected  of  sighing  for  a  domestic  usurper,  lie  is  for  subjecting  our  Consti- 
tution and  laws  to  the  mercy  of  a  foreign  invader  also.  He  not  merely  concurs 
with  Messrs.  Buchanan,  Berrien,  and  Jackson,  in  the  right  of  a  military  man 
to  usurp  authority  over  the  Constitution,  when  he  thinks  it  necessary,  and  to 
keep  it  up  as  long  as  he  thinks  it  necessary ;  but  for  fear  an  American  com- 
mander would  never  have  the  temerity  or  iniquity  to  attempt  what  he  has  in 
view,  he  claims  that  the  power  rightfully  belongs  to  a  foreign  invader  also,  having 
in  his  eye,  no  doubt,  an  invader  in  particular  that  never  scrupled  about  means, 
however  infamous,  in  the  attainment  of  ends  however  iniquitous. 

"  If  a  foreign  invader  can  strike  dead  in  the  hands  of  its  owners  four  hundred 
millions'  worth  of  property  by  his  mere  proclamation,  though  he  be  defeated 
and  driven  from  our  territory  the  next  day,  it  is  by  a  most  precarious  tenure, 
indeed,  that  we  hold  all  which  government  was  instituted  to  protect  and  guard. 
For  Mr.  Adams  does  by  no  means  limit  this  power  to  a  mere  emancipaiion  of 
slaves,  but  says  it  sweeps  the  whole  Constitution  by  the  board,  and  substitutes 
the  invader's  will  in  its  place.  He  no  doubt  looks  to  that  admired  British  Uov- 
ernment  for  the  invading  commander  who  is  by  proclamation  to  emancipate  the 
three  millions  of  his  black  fellow- citizens.  But  he  should  remember  that,  though 
it  be  now  the  pleasure  of  that  immaculate  Government  to  preach  a  crusade 
against  negro  slavery,  she  was  formerly  the  patron  and  even  attempted  to  be 
the  monopolizer  of  the  slave-trade ;  that  she  even  forced  the  slaves  upon  this 
country  in  despite  the  remonstrance  of  our  fathers,  as  she  is  now  attempting  to 
force  her  opium  upon  the  Chinese ;  that  she  may  again  change  her  views,  drop 
her  crusade  against  negro  slavery,  and  preach  a  new  crusade,  as  formerly, 
against  the  Protestant  religion  or  any  other  cherished  right  of  New  England. 
Does  that  also  lie  at  the  mercy  of  her  proclamations?  Can  she  thus  put  down 
that  religion,  and  put  up  the  Catholic  or  any  other  in  its  place  ? 

"But,  says  Mr.  Adams,  this  is  not  a  mere  theory;  'his  doctrine  has  been 
carried  into  practical  execution.'  He  cites  us  to  the  example  of  those  eminent 
man-slayers  and  expositors  of  the  law  of  nations,  and  of  the  usages  of  civilized 
warfare,  Generals  Morillo  and  Bolivar.  He  says  they  both  did  the  thing  in  Co- 
lumbia, though  he  does  not  explain  how;  after  one  had  emancipated  all  the 
slaves,  it  was  still  left  for  the  other  to  do.  Neither  has  he  done  his  argument 
all  the  justice  he  might,  in  favor  of  the  might  of  military  power,  from  the  ex- 
ample of  the  best  of  those  two  eminent  expositors.  He  forgot  to  tell  us  that 
Bolivar,  after  having  emancipated  the  blacks,  by  virtue  of  the  same  martial  law, 
enslaved  the  whites,  and  placed  a  crown  on  his  own  head.  We  of  the  South 
even,  who  are  so  much  interested  in  the  subject  of  slave  property,  would  deem 
this  a  much  more  striking  and  convincing  example  of  the  extent  of  military 
power  than  that  of  the  mere  emancipation  of  slaves. 

"  How  differently  from  his  forefathers  of  Massachusetts  does  Mr.  Adams  con- 
sider the  influence  of  foreign  laws,  and  the  overshadowing  supremacy  of  military 
poirer.  They  say  in  their  Constitution  :  'The  people  of  this  Commonwealth  are 
not  controllable  by  any  other  laws  than  those  to  which  their  constitutional  repre- 
sentative body  have  given  their  consent.'  He  says  they  are  controllable  by  the 
arbitrary  will  of  a  military  chief,  foreign  or  domestic ;  and  that  even  their  con- 
stitution is  in  subordination  to  the  law  of  war  and  the  law  of  nations.  Their 
Provincial  Congress,  writing  to  the  Continental  Congress,  in  May,  1775,  on  the 
necessity  of  their  'taking  up  civil  government,'  said  :  'As  the  sword  in  all  free 
States  should  be  subservient  to  the  civil  powers,  and  as  it  is  the  duty  of  the 
magistrate  to  support  it  for  the  people's  necessary  defence,  we  tremble  at  having 
an  army,  although  consisting  of  our  own  countrymen,  established  here,  without  a  civil 
power  to  provide  for  and  control  them.'  This  being  in  time  of  actual  war,  a  war 
of  revolution  too,  what  a  silly  set  of  old-fashioned  fellows  that  Provincial  Con- 
gress must  have  been  to  be  thus  sighing  for  a  civil  government  to  control  the  ar- 
my, they  not  knowing  in  their  simplicity  that  it  was  the  undoubted  prerogative, 
by  the  law  of  nations,  for  the  military  to  control  the  civil  power  in  time  of  war. 
Fighting  as  they  were  for  their  lives  and  liberties,  in  the  midst  of  an  actual  war 


29 

of  revolution,  they  trembled  at  the  idea  of  an  army  of  even  their  own  country- 
men, becau.se  there  was  no  adequate  civil  power  to  control  it.  So  little  of  this 
fear  of  military  sway  is  there  in  Mr.  Adams,  that  he  contends  the  military  right- 
fully does  ami  should  overmaster  and  control  the  civil  authority,  in  time  of  war 
from  invasion  or  insurrection. 

"  In  case  of  a  slave  insurrection,  if  the  United  States  are  called  upon  to  fulfill 
the  constitutional  guarantee  against  domestic  violence,  Mr.  Adams  says  the  Pres- 
ident, or  one  of  his  subalterns,  may,  at  his  discretion,  in  order  to  put  an  end 
to  the  insurrection,  emancipate  all  the  slaves.  That  is,  when  the  slaves  are  com- 
mitting violence  to  obtain  their  freedom,  the  President,  in  discharge  of  his  duty, 
to  aid  in  putting  down  that  violence,  may,  by  proclamation,  emancipate  the 
•laves.  The  slaveholders  call  in  the  Government  to  aid  in  keeping  the  slaves  in 
bondage,  and  he  may  perform  this  duty  by  setting  them  free.  Mr.  Adams  does 
not  at  all  confine  this  sovereign  power  in  the  President  or  bis  subalterns  to  the 
mere  particular  of  emancipating  the  three  millions  of  his  black  fellow-citizens, 
but  allows  the  full  force  of  the  analogy,  that  necessarily  extends  it  to  all  other 
subjects  of  property,  right,  or  constitutional  guarantee.  For  instance,  when  Gov- 
ernment interposed  with  its  military  power  to  suppress  Shay's  rebellion  in  Mas- 
sachusetts, or  the  whisky  insurrection  in  Pennsylvania,  or  the  recent  Suffrage  in- 
surrection in  Rhode  Island,  the  officer  commanding  the  military  power  would 
have  had  the  right  to  suppress  the  two  first,  by  annulling  the  taxes  which  pro- 
duced them,  and  the  last,  by  granting  free  suffrage  to  everybody. 

"  Unable  to  find  anything  in  the  Constitution  to  authorize  the  Federal  Gov- 
ernment to  interfere  with  the  question  of  negro  slavery,  he  is  driven  to  a  power 
de  hors  the  Constitution,  and  conjures  up  this  undefined  and  uudefiuable  power 
of  martial  law.  He  at  once  sees  that  it  will  not  do  to  treat  the  war  power  as  sub- 
ordinate to  and  flowing  from  the  civil  functionaries  of  the  Government,  for  it 
must  necessarily  be  only  commensurate  with  the  powers  of  those  functionaries. 
He  therefore  resorts  to  the  desperate  shift  of  claiming  it  to  be  a  power  paramount 
to  the  whole  Constitution.  He  boldly  denies  to  the  nation  the  right  to  declare 
as  it  has  done,  that  the  Constitution  shall  be  the  supreme  law  of  the  land  ;  and 
asserts  that  martial  law  is  paramount  to  all  other  law,  not  controllable  by  the 
•will  of  the  nation  or  any  form  of  constitution.  A  grosser  absurdity  surely  never 
entered  the  mind  of  an  intelligent  man,  educated  under  a  government  having  a 
written  constitution." 

******* 

"What  an  admirable  substitute  is  this  newly  discovered  power  for  all  those 
powers  our  fathers  were  silly  enough  to  attempt  to  deny  to  the  Federal  Govern- 
ment by  express  constitutional  prohibition ;  such,  for  instance,  as  the  power  to 
pass  bills  of  attainder  and  ex  pott  facto  laws ;  to  abridge  the  freedom  of  speech  or 
the  press;  to  hold  men  answerable  for  capital  or  infamous  crimes,  without  an 
indictment ;  to  deprive  men  of  life,  liberty,  or  property,  without  due  process  of 
law ;  and  in  criminal  prosecutions  to  deprive  them  of  the  benefit  of  an  impartial 
jury  of  the  vicinage.  It  is  an  old  and  familiar  tyrant's  trick,  to  pinch  the  sub- 
ject till  he  squeak,  and  then  punish  him  for  squalling.  No  government  ever 
lacked  the  wit  to  create  a  rebellion  when  one  was  wanted.  When  once  produced, 
where  the  need  for  bills  of  attainder  or  ex  pott  facto  laws;  when  the  laws  of 
war  at  once  cast  the  lives  and  fortunes  of  the  whole  community  into  the  hollow 
of  the  President's  hand,  or  into  that  of  any  military  minion  he  may  send  forth 
to  deal  out  his  own  or  party  vengeance." 


Lithorr.ount 
Pamphlet 

Binder 
Gaylord  Bros. 

Makers 

Stockton,  Calif. 
PAT.  JAN  21.  1908 


